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Law Quarterly Review

2017

Publication Review

On Fantasy Island. Britain, Europe and Human Rights

Conor Gearty
Reviewed by Jonathan Sumption
Subject: Human rights . Other related subjects: Constitutional law.
*L.Q.R. 338 This book is a sustained defence of the Human Rights Act 1998 and the European
Convention on Human Rights against its perceived enemies, loosely lumped together under the title
"fantasists".
The authors starting point is a fierce attack on the state of English law before the Act was passed.
Far from being the great engine of liberty described by nationalists and romantics, Professor Gearty
believes that the English common law was the creation of reactionary, middle class, male judges and
narrow-minded academics whose chief instinct was to support the authority of the government in
general and the police in particular. The main targets here are Lord Chief Justice Hewart, who retired
in 1940, and the great liberal constitutional lawyer A.V. Dicey, who died in 1922. Hewart is
characterised as a determined enemy of free speech, on the strength of a number of cases about the
power of the police to prevent breaches of the peace in the course of political demonstrations. Dicey,
we are told, was "just as bad" because he favoured the rule of law only when it was invoked by
groups of whom he approved. No evidence is cited for this assertion.
The same attitudes, Professor Gearty says, persisted throughout the second half of the 20th century,
a period in which the judges are variously described as "partisan warriors" and "poodles of power". It
took the Human Rights Act and the decisions of the European Court of Human Rights to bring them to
a proper realisation of liberal values. The author cannot quite decide what will happen if the Act is
repealed. In Ch.3, he suggests that as the present generation of judges retires, their successors will
be "men from traditional schools and universities" unconcerned by equality or fairness, who can be
expected to revert to type. But in Ch.12, we learn that there would be no point in repealing the Act
because the judges are in the process of developing a scheme of human rights protection at common
law which can be expected to survive it. It is all very confusing.
The core of the book lies between Chs 5 and 10. In these chapters, Professor Gearty defends the
Convention against ill-informed criticism by politicians and parts of the press. He argues that it has
protected the interests of vulnerable groups, with no natural body of support among the electorate or
the press, whose interests are commonly overlooked when it comes to social legislation and financial
priorities. The Convention has forced more humane and inclusive values on reluctant ministers and
officials. It has obliged the decision makers to listen to the objections of those whose civil rights are
adversely affected, and required them to provide an objective justification to a court. Professor Gearty
is an admirer of the Strasbourg Court. It has condemned the indefensible, he says, while allowing an
ample margin of appreciation to national courts and respecting their constitutional settlements. At the
same time, it has been both principled and cautious in its treatment of core functions of the executive,
achieving workable compromises in sensitive areas such as counter terrorism and intelligence
gathering. More *L.Q.R. 339 fundamentally, he argues that even if the courts decisions are thought
to be unduly intrusive, the cure is in our own hands. The Human Rights Act only requires the English
courts to "have regard" to its case law. There is no power to strike down incompatible legislation.
Parliament has no constitutional duty to repeal or amend incompatible legislation. All of this is argued
with verve and learning, and much of it is unanswerable.
The problem is that Professor Gearty is excessively fond of extravagant philippics. The authors
treatment of the common law tradition, which is summarised above, depends on a highly tendentious
selection of examples. Historically, common law judges have of course been creatures of their time,
with the values of their time. Our own values are not necessarily the same. Even so, one would hardly
guess from this book that some of the core values of modern international human rights law are to be
found in Blackstone in the middle of the 18th century; or that the authors of the American Bill of Rights
thought that they were replicating the English common law; or that the judicial "poodles" of 1960s and
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1970s were responsible for the creation of a coherent system of judicial review which provided for the
first time an effective means of challenging arbitrary executive decision making.
Unfortunately, the same spirit of ungenerous polemic infects Professor Geartys treatment of those
who disagree with him. Professor Finniss views, for example, are undoubtedly controversial but this
hardly warrants the basin of abuse thrown at him here or the use of the dismissive epithet
"Finnis-type" or "Finnis-style" to describe other critics of the current state of human rights law, such as
Lord Justice Laws and Lord Hoffmann, with whose views he hardly engages. Underlying much of this
is what seems, at any rate to this reviewer, to be a misconception of real burden of the case on the
other side. In the authors view, the UK "needs help" to observe human rights and should not be too
proud to accept it from the other countries of the Council of Europe or the institutions which they have
created. In his view, those who disagree are suffering from the delusions of post-imperial nostalgia
and resentment of Britains declining place in the world, which is why they do not want to live by the
same rules as the rest of Europe or accept the views of a foreign tribunal.
No doubt there are people who do think like this. But it is hardly a fair summary of the position of the
more thoughtful objectors. They have no problem with the terms of the Convention but are opposed to
the manner of its interpretation and enforcement. There are, perhaps, two main strands in their
objections. The first is based on the exceptionalism not just of the UK but of any stable society whose
values and institutions have a long history. This is encapsulated in Lord Hoffmanns statement that
human rights are "universal in abstraction but national in application" ("The universality of human
rights", Judicial Studies Board Annual Lecture (2009), para.23). So far as the Convention is a
statement of moral principles, those principles can meaningfully be regarded as universally true. But
so far as they are enforceable legal rights, they are claims against the particular society which
chooses to recognise them. The right to bring such claims is necessarily sensitive to the collective
experience, traditions and values of that society. There is no reason why the same moral principles
should call for the same enforceable rights in societies which may differ radically in all of these
respects. The second strand is based on *L.Q.R. 340 an objection in a democracy to the resolution
by judges (whether British or foreign) of essentially political questions because judges are (rightly) not
democratically accountable. Many of the issues provoked by the European Convention, such as the
right to die, the qualification to vote or the elements of penal policy, are not just issues between the
state and the individual. They are also issues between different groups of citizens who have different
moral perceptions of these things. These groups can reasonably expect to have their differences
resolved through a democratic political process. The argument is not really answered by saying that
Parliament can ignore a Strasbourg judgment or a declaration of incompatibility. So it can, at the risk
of putting the UK in breach of its treaty obligations. But in any event, most such issues concern
subordinate legislation or rules of common law, where the judicial decisions about the Convention are
self-executing.
On Fantasy Island contains much that is serious and valuable. But the authors abrasive rhetoric and
failure to acknowledge the counter-arguments means that while it will cheer those who already agree
with him, it will do nothing to convert the sceptics. The critical question is only briefly touched on
towards the end of the book, where it becomes clear that far from denying that the Convention
transfers powers from democratically accountable politicians to judges, Professor Gearty applauds it.
The courtroom, he says, is the place where "rational argument takes pride of place over rhetoric
There is no room here for the sorts of sleights of hand that draw applause at a party conference".
Doubtless, he is right about that, but he does not seem to be conscious of the dilemma which his
preference involves. Is the excellence of the laws a sufficient justification for the want of a democratic
mandate? A despot could run the same argument. But should the rest of us agree? The alternative
was long ago put by Justice Oliver Wendell Holmes: "If my fellow citizens want to go to Hell, I will help
them. Its my job."
Jonathan Sumption
Supreme Court of the United Kingdom
L.Q.R. 2017, 133(Apr), 338-340
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