All posts by Conor Gearty

I am Professor of Human Rights Law at LSE, and a Member of Matrix Chambers where I practice law as a barrister.

My initial thoughts on Miller/Cherry

In March 1954, that distinguished forerunner of today’s politics, senator Joe McCarthy of Wisconsin, was directly challenged by the famed American journalist Ed Murrow about his virulent attacks on what his equivalents today call the ‘enemies of the people’. The courts had earlier given McCarthyism a blank cheque but the media (or at least Murrow) was not so complaint. The programme didn’t bring McCarthy down by itself but it punctured his balloon of self-righteous fury, as it turned out for good.

It is hard to tell at the moment of its occurrence whether any given populist bubble is being conclusively burst. But the chances are the Supreme Court has just done a Murrow.

Without question this is the finest moment in the annals of the UK’s judicial history. Building on the work of their Scottish colleagues, the Supreme Court has unanimously – all eleven of them! – found the prime minister to have exceeded the limits of the prerogative power to prorogue parliament when he advised the Queen to do just that at the end of last month. These prerogative powers have been around for a bit, having served as the attack dogs of despotism in monarchical times gone past.

Slowly but surely in the democratic era they have been brought under the umbrella of the law, leaving just a few whose use was thought to be so clear and obvious as to not need legal enforcement. Her Majesty could be left in a pretend world of power while democracy eddied around her and prime ministers did the right thing. The prorogue power was thought to be one of those. Not any more; Boris Johnson has seen to that. Baroness Hale went further than anyone imagined in not only declaring his advice to Her Majesty unlawful but in quashing the resultant Order-in-Council, even asserting (on behalf of the Court) that she wasn’t sure whether he had any role in the reconvening of Parliament that followed inexorably once you accepted that it had never actually gone away (para 70).

Why did the court do it? The constitutional reason – an entirely good one – is that the Court has deduced from the fundamental principles of representative democracy and accountable government a set of constraints on power that flow from these principles and which must as a result adhere to all exercises of public power including those of the most senior political figures in the land (paras 41 and 46 of the judgment).

The deeper truth lying behind how these principles were deployed in this case leads us to something that was once a commonplace but these days is a glory rarely to be found in the shrill word of Brexit politics. In law, reason still matters. Facts are relevant. Nonsense doesn’t work. How can you justify the Prime Minister’s power by saying he is accountable to Parliament when you have just dispensed with Parliament? Why on earth do you need to cancel Parliament for weeks to do a Queen’s speech? Deceitful or deliberately obtuse replies to these basic questions might get you through a three-minute media interview or a noisy prime minister’s question time, but they can’t survive the forensic attentions of independently minded lawyers with time to draw the non sequiturs, the contradictions and the lies to the surface.

This case is not about the judges seizing the policy agenda whatever the critics of the outcome might say. It is concerned with process not substance, with how things get done rather than what is done. Strongly hostile to democracy in days gone by, the judiciary have now embraced its fundamental tenets, taking to heart what we all say matters to us. In this decision the judges are oiling the democratic machine, not telling it what to produce.

And then, undeniably, there is the Johnson factor. Finding this kind of thing open to judicial scrutiny (‘justiciable’ as it is called) is a very big deal indeed – three very senior judges in the original English proceedings had thought it obvious that the courts should not interfere as had the first Scottish judge to look at the matter. Many of the eleven Justices have history as supporters in broad terms of executive power. But Boris Johnson made the case about something even larger than the prerogative. He seems intent on ignoring the Act of Parliament that orders him to seek an extension to the Article 50 process if matters are not resolved by mid-October. He didn’t bother to supply the Supreme Court with what basic decency and tactical acumen would have suggested was essential – a statement of his own side of the story. While asserting the prorogation had nothing to do with Brexit he at the same time treated that very same prorogation as a vital part of his Brexit strategy. During the case it was not even clear he would obey whatever ruling the Court came up with, or that at very best he would seek to circumvent it using any loophole that residual judicial deference might have left open to him.

This Prime Minister’s behaviour made the case not only about the integrity of our whole system of representative democracy but also, and crucially, about the very existence of the rule of law. Even executive-minded members of the judiciary draw the line at that. And unanimity also meant that the attack dogs of populism have eleven reputations to rubbish, not six or seven. Solidarity would not seem to be a value which the prime minister recognises, but the judges have just shown they do understand its importance.

This Supreme Court decision is a telling illustration of why all populist authoritarians need to dismantle the independent judiciary. If Johnson were given the election he wants his rabble-rousing might well deliver a majority as it has in the past for the likes of Putin, Erdogan and Orbán. But they all have needed to destroy the courts and on his current form Johnson would have followed that path had he had the chance to score a populist victory at the polls. In one of the odder quirks in this unfolding drama, representative democracy and the rule of law may owe their survival to the inflexibility of the Fixed-terms Parliament Act, preventing the PM from playing the populist card.

Richard Nixon suffered a defeat in the US Supreme Court, on 24 July 1974. His was ‘only’ 8-0. He responded defiantly for a little while, declaring the case itself to be unconstitutional. Just over two weeks later he had resigned.

‘One Island: Two Systems. The Future of Rights Post Brexit’

A series of loose remarks given as the annual Hibernian Law Lecture and revised the other day, inspired (or, one might say, incited) by the latest developments in the Brexit saga (or should I say tragedy?)

This entire Brexit can be summed up by the section of the EU Withdrawal Act which boldly states “The Charter of Rights is not part of domestic law on or after Brexit day” while the next bit of the very same section in essence says “please can we have it back”. In essence “let’s please the fools” and “let’s stay the same way as we are”.

On the notion of Parliament “taking back control”, this nonsensical position was produced by people who may be well-educated but who are in other ways intensely stupid – and stupidity is underestimated as a factor in Brexit – it is the entry point into the public square for puerility, facetiousness and confected passion. The UK Government was forced to explain in a White Paper why they had left the European Union or were proposing to do so. In that White Paper, produced by civil servants desperately trying to square political demands with factual reality, it says that actually, parliamentary sovereignty had not been eroded by the European Union. It just “felt” like parliamentary sovereignty had been eroded and this is literally contained within a government White Paper. It is feelings that drive the suicide of a country.

After a long delay, explanatory Brexit “Notes” were published by the UK Government; these would have gone down well in a cult that had relocated to some inner-Brazilian rainforest so as to kill itself. At the time of this talk, fifty-six such notes have been published and collectively these explain why there is going to be a catastrophe in the case of a Hard-Brexit. The best of the idiotic explanations of the supposed (by Brexiteers) hardening of the Irish Government position as Brexit nears came from the UK Minister whose invention of universal credit has caused such misery in Britain, Ian Duncan Smith MP. This former leader of the Conservative Party (and it is surprising quite how many Brexit leaders are sacked former Tory ministers) said around November last year, when asked about this perception of growing Irish intransigence, that “it’s all about the Presidential election”. It was a bizarre position and yet, Ian Duncan Smith MP is one of the architects of Brexit. Presumably he believed it when he said it.

I have four points to make to you on the theme of this Annual Lecture, a more polemical offering I fear than the usual august academic fare with which this usually society is familiar.
The first point is not a point. It is a kind of introductory remark which is a cheat, a type of preface, and it is this. The Spectator magazine in the week of this lecture had a front page which I thought was terrific and this included a map of Ireland and Britain, while Jean-Claude Juncker (with his glass of wine) and Michel Barnier were pouring over a map of Ireland moving forces. It was a brilliant image of how Europe has occupied Ireland and is defeating Britain and there was a tremendous anxiety about this. But actually I think it was quite interesting. The relationship between Ireland and Britain has been mediated by European conflict for as long as we all know. It was the threat of Spain that produced the settlements of what has led to what you might describe as “the Northern Ireland problem” after the defeat in the Armada through bad weather, which the British claim was a great victory.

Then it was fear of Napoleon and the occupation of that large island to Britain’s west that caused them to enact the Act of Union in 1800. It was of course conscription that later produced the amazing revolt in Ireland that led in the end to the success of the Sinn Féin movement and a splintering of the island with two thirds of it going its own way, something which, hardly any of those within the Brexit camp acknowledge. (But then we have had a Brexit Secretary who says he has never read the Good Friday Agreement and a current Northern Ireland Secretary who has admitted that she did not know that unionists and nationalists didn’t vote for one another.)
With Brexit what we have seen realized is what has been the nightmare of British policy since not so long after the Norman landings: it has united Europe against the British and Europe has with the agreement of Ireland, occupied Ireland, but Ireland is part of the occupation of itself, as Europeans. The only issue, as I said recently at a British Academy / Royal Irish Academy joint seminar a few weeks ago for the English press (there is a tremendous civic responsibility to try and educate the English on this), the only issue of interest is the terms of the surrender.

A further thread to my first point is the Irish anomaly. For the British Brexiteer we Irish are not European and it has a huge impact on the story that we are telling here. There is this Brexit-inspired eccentricity of the denial of our independence producing such descriptions of our jurisdiction as southern Ireland (David Davis, when Brexit Secretary). The point is a long-standing one, and its effect is that we have been left out of all the British statistics over generations – which is to our benefit now in terms of rights. That is a big win for us because the British do not think we are a separate country. It is aggravating and annoying, but it means that the Common Travel Area is maintained but more to the point, we can pop in to hospitals in the United Kingdom, we can easily apply for jobs and rent within the UK.

Of course there are worrying outliers to this. As things are shaping up, the Irish from Northern Ireland (forced into being British) and those who marry or partner foreigners may be caught in the Brexit anti-other net, but even these may be saved after a fight. Not so long ago, when Tony Blair and Gordon Brown held sway over British politics, Lord Goldsmith, a Labour peer, thought it would be a good idea to stop the Irish voting in UK elections. He was promptly taken into a room and told to “pull himself together”. Hence the Irish still vote in UK elections and of course, the reason he was told to pull himself together was not only that the Irish were Labour voters but for the same reason they do not even count us in their statistics, because they have no idea where we even are. We are everywhere. We are like some weird spectre. So they ignore us. They ignore us. Bravo!

This first point is clear and straightforward. But we must not be complacent. We do not know how bad it is going to get because this is a revolutionary moment and in revolutionary moments, mad people always get the next stage under way. So you are always trumped and you are always trumped by the madder person beside you and it is not impossible that actually there will be squeezes. There may be a clamp down on the Irish and it is not impossible that the European Union will look at areas like the Common Travel Area and as Union, they might force us to make difficult choices further down the line. We may end up fighting hard to keep the Human Rights Act to protect the Irish as well as other “others”
My second point this evening relates to the Good Friday Agreement. In respect of the Human Rights Act, a crucial part of the Good Friday Agreement, a notable Parliamentary written answer by the UK Solicitor General, when asked about plans to repeal the Human Rights Act, was a rather lame answer saying in essence that “we have got rather a lot on our plate”. But Caoilfhionn Gallagher QC speaking here before me this evening is right when she that the UK’s Conservative Government is planning its repeal in the future. The Human Rights Act and the European Convention on Human Rights was, after all, the stalking horse for Brexit, the hostile act the anti-European ultras floated when not even they truly believed that they would get leaving the EU (Brexit as it was not then called) on the mainstream political agenda.

(I am not yet fully convinced that Prime Minister Theresa May knew the difference between the European Court of Human Rights and the European Court of Justice and that her bizarre red line “thou shalt not have the European Court of Justice” was in fact one which she intended would reach the European Court of Human Rights. I am not sure but I do know that it is not an impossible deduction from the level of political discourse in Britain today.)

The European Union is obviously built into the architecture of the Good Friday Agreement. It is really quite important to note that the DUP wants to break the Good Friday Agreement and the DUP’s rationale is an end to cross-border co-operation. Ian Paisley Sr. made his start in life by throwing snow balls at then Taoiseach Seán Lemass and he brought a mob to try and take over when the Good Friday Agreement was being negotiated So this is in their blood and it is the reason that the DUP is now the most successful Unionist party in Northern Ireland: they have never allowed themselves to be outmanoeuvred by extremists.

However on this second of my four points, I might offer an optimistic observation. I think the DUP may have over-played its hand. One, they announced they were going to bring down the UK Government over the budget but nothing happened and they did not bring down the government. Two, Arlene Foster thought that she could stop the agreement on the back-stop, then stopped it for a few days, yet Theresa May, later went to Brussels and agreed everything. Nevertheless, Theresa May’s government is still in post. Somebody had the bright idea when there was an Northern Ireland Assembly of sending some of the rather difficult men off to Westminster to play games but who would have thought there would be no Assembly and that they would have been the people who would matter? They may yet destroy the DUP, especially if they deliver a no-deal Brexit, a disaster in Great Britain but a greater one in Northern Ireland.
As things stand the possibility of a withdrawal agreement is still in play. It cannot surely be the case that Northern Ireland will accept its collapse when the Backstop is the most astonishing win for Northern Ireland conceivable. The vast majority of people in Northern Ireland voted for Remain parties. The DUP has by no means a majority of the votes. The situation is escalated by the fact that Sinn Féin does not take its Westminster seats of course. But the Backstop does not entail just two citizenships. There are going to be three citizenships involved. Those from Northern Ireland are going to be citizens of Britain when they feel like it, with all the subsidies from Britain; they are going to be citizens of Europe when they feel like it; and if they want to come down to the Irish Republic, they will be citizens of Ireland. They have a fantastic win and they are going to realise it. The head of the CBI Northern Ireland has said that he is moving his business south. The official Unionist leader has said that the DUP has brought unionism into the swamp.

We shall see. There has been very good cross-party co-operation apart from the DUP and in particular, a Joint-Statement on human rights issued in June of this year, by Sinn Féin, the SDLP, the Alliance Party and the Green Party. In addition, there has been a complaint made by the Committee on the Administration of Justice to the European Ombudsman about human rights matters. The departure of Gerry Adams from the Sinn Féin leadership has freed up quite a lot of space in Sinn Féin and Sinn Féin, together with the Alliance Party and Green Party, as a progressive alliance has more votes by far than the DUP. It seems impossible now but change seemed impossible in 1988 and 1989 in Poland and East Germany.
The current situation in Northern Ireland is a fundamentally rotten position and it cannot survive, so I think the Backstop will be protected, whether before or after Brexit, hard or soft. The only rationale for Brexit from a British perspective is a deregulated economy without safeguards and, essentially turning it into a cash haven, a Cayman Islands or something akin to that. There is no other rationale for it. To that extent, the ardent Brexiteers are right, in that mimicking Europe without any influence in Europe is idiotic. So the problem is that it was such a stupid proposal to start with, that there is no rationale behind it, but if there had been a rationale that would have been it. And if that happens, Northern Ireland needs a Backstop to protect itself from the destruction that will be wrought by a government that does not believe in state subsidies. Northern Ireland needs to be careful about governments, if I may say so politely, that do not believe in state subsidy.

Third point. There are three options that I am going to put before you and they all have direct implications on rights but the issue of rights is inseparable from the whole issue of Brexit. Here are my suggested three options:

One, there is going to be a deal with the backstop. Britain will surrender in that way and the backstop will kick in. Of course, there be no subsequent, fabulous deal. The backstop will continue and over time there will be de facto unity. It will be impossible to distinguish Northern Ireland from the Irish Republic and it will be very possible to distinguish Northern Ireland from Britain. There may well be pressure for some type of plebiscite but there may not even be that. Meanwhile, over in Great Britain, there is going to be increased secessionist fury from Scotland but that is not our concern.

Second what happens if there is no deal and Remain? How can this come about? A deal may be rejected by the ruling party or by the UK Parliament. As I speak I think this is a highly likely scenario. This takes us to “no deal” deals and it is interesting how the optimistic view about no deal in Britain has usually hinged on the reason why there is no deal in the first place suddenly disappearing. In essence “we will be able to fly planes because Europe is going to be nice to us about planes” and “we will be able to get Mrs May and other people their insulin because the Europeans will let us have it”. In material Northern Irish terms, it seems nobody will mind about electricity being shared between Britain and Ireland because after all, a no-deal without “no-deal deals” on the margins is impossible, right?
I think what will happen is that when it is apparent that no-deal comes as a “no deals no deal”, I think there is going to be a collapse in Britain in Spring/early Summer 2019, a genuine moral collapse. They have not been prepared for it and I think there is going to be pandemonium. The ECJ will by then have ruled on the application which is being heard this week about the legal possibility of revocation of Article 50 and may come to the rescue of the British in this respect which would be quite comic, wouldn’t it? (And of course we now know that it has, in the shape of the Wightman ruling.)
If the UK Government does renege on Brexit, in panic, it is very important who does this. This takes me to that much discussed idea, populism. What is populism? Populism is a rejection of all authority. It is rooted in antagonism. “Populism” as understood today is a cipher for anger and hatred. As such populism is not anything positive. Populism has no agenda and that is why there is no populist running the country. It is why they wanted David Cameron to stay on, why all the populists keep resigning from the Cabinet. Populists cannot do stuff. They just wreck stuff. That is the definition of populism. They wreck judges, they wreck executives, they wreck courts. Everything is elite, everything is elite, everything is elite. The scapegoats are all available.

So, I am all for reneging on Brexit as long as it is those people responsible for Brexit that are tasked with the act of reneging and even then, I am not sure. At very least a revocation of article 50 should be accompanied by legislation setting up a public inquiry with wide powers of compulsion into the causes of Brexit – it should run for years and have a power to refer to the Attorney General for the pressing of criminal charges where appropriate.

The third option is no deal and Brexit. In this scenario, we have disaster and I think there will be disorder in the streets. There will be chaos and pandemonium. It will be the Suez economic crisis multiplied by ten. The British public is not aware of what is in store for them. The pound will have disappeared and the latest reports from the credit agencies say there will be a recession. What happens then? Waves of revolt. And I do not know how this is going to play but it will be one of two things. It will either be more populism of the left or of the right. Indeed, the Labour Party is today led by people who are Brexit people but it could also entail a return to a Macron-type figure in British politics or the great, and much underestimated, Tony Blair. But this is very difficult to achieve in British political culture. I cannot imagine a Macron-type figure gaining any steam in the British system because the British system is so dependent on “first past the post” and its parliamentary tradition but we live and hope, we live and hope.

My fourth and last of my main points deals with underlying problems. I am not keen, as has become obvious, on Britain being saved from itself by elites, courts, referenda and so on. One of the reasons is because I think the country has not even begun to address what I call three underlying problems here. I chaired an amazing LSE event on 23rd June 2016, on the evening of the Brexit referendum when the results were pouting in, and there were about 400 people in the room. We had all these experts in and we had the vote coming through and it was incredibly exciting to be chairing something like that. At about 3am in the morning, I made a little speech about how this was not unexpected and how you cannot undo all this Europhobia in three months. The UK Government had to run “Project Fear” because they had nothing good to say and they could not do anything else. They need to actually stop instrumentalising the EU and firstly, to learn that it is about more than transactions.
What is happening in British politics is that everything is thought to have a price. It is the legacy of Margaret Thatcher. Everything is instrumentalised in monetary terms. And so the majority of the British public cannot understand that there might be anything more to the EU than German cars and they are still nowhere near to understanding that. They need the equivalent of an economic disaster. Unfortunately, on a par with some sort of military occupation, in order to understand the value of partnership. Great British is the only country that has not experienced this. Theresa May talked about how awful it would be to have a divided country and pleaded to the European Council not to divide Northern Ireland from the UK. In the same room, was the Taoiseach, whose country was divided in order to get Northern Ireland. Also in the same room was the German Chancellor, Angela Merkel, whose country was divided until 1989. Both Czech and Slovak leaders, Cypriot too, it did not seem to occur to Theresa May that this was something that has happened to other nation. I am afraid that needs to be understood.

The second missing element is that there is an amazing constitutional illiteracy in Britain. The British have been destroyed by the notion of “taking back control”. They have made such a song and a dance about parliamentary sovereignty that their word counts for nothing in international agreements – if parliament really is sovereign then it can always change its mind, all the time – there is no constitution to constrain it. It is quite remarkable to observe because the British boast to domestic audiences that they will not obey that which they have just agreed and they seem oblivious of the fact that people in Europe are listening and can understand English. Just because the UK’s political leaders never listen to, or follow, German or French discourse, does not mean that others do not follow theirs. The British really are trapped by that because trust in them is zero.

Ireland is quite unusual as most European Union countries, at least the big ones, have imperialistic pasts, such as Austria, Poland and Sweden. Ireland is quite unusual in being always pretty small. But Britain has absolutely not come to terms with that for complicated reasons related to having never been occupied, thanks to the assistance of the Russians or the Americans to help them win wars (as well as the weather of course, as earlier noted) they then think they won by themselves, including Waterloo. So, there needs to be a really strong critical examination of how small Britain is today. I do not think any of that will be addressed by resiling from the implications of Brexit.

So I am a “returner”. I am a returner and I foresee a situation where there is an application from the UK to rejoin the European Union and we fast-track it. Perhaps Cyprus, and maybe Ireland, and so on, will come as a Troika to assess Britain’s suitability.

The UDHR at 70: What Next for Human Rights?

How serious are current threats to the post-war international order of which the protection of human rights is such a central part?

Three potential challenges in particular come immediately to mind.

First there is the outright rejection of the very idea, with states organizing themselves formally around systems of rule in which individuals are allowed to be explicit casualties of passing state interests. Of course not even the worst states put it quite like this, and with the passing of the era of the Cold War no substantial ideology sets its face against human rights in quite this explicit way: indeed not even the Soviet Union did so at its height, preferring a different version of human rights (economic and social rights) to having none at all.

The second challenge is more akin to what the Soviets were doing when they resisted Helsinki with pointed references to the way they looked after the real needs of their citizens: more social protection than Solzhenitsyn. We believe in rights for sure: but here is what we mean by the term and (particularly important) here is how we go about protecting them. It is an exaggeration but only a slight one to say that today no self-respecting authoritarian state is without its media (state-controlled), its elections (fixed), its human rights commissions (tame nominees) and its ‘special’ courts (generalized charges; government-appointed advocates; secret justice). The loudly-proclaimed spectre of terrorism is the means by which such arrangements can be made to secure public and international approval, something on which the United Nations itself has led the way with its (Institutionally self-defensive) turn to a panoply of Security Council anti-terrorism resolutions in the aftermath of the attacks of 11 September 2001. In many ways the field of international human rights over the past two decades has been about how to balance liberty and security in light of the changed circumstances wrought by those traumatic events. On the whole human rights has managed to claw back some ground from the anti-terrorism people, aided in particular by strong stands on due process and the rule of law that have been made by lawyers’ associations worldwide and the regional judicial bodies within Europe. Human rights have come to live with the exigencies of the permanent security crisis, not liking what it entails but coping nonetheless.

The third challenge is newer, flowing out of how the world has changed since the collapse of the old order in 1989 and the consequent return of national and religious tropes thought to have been banished for ever in the postwar world of rationalism and (latterly) of global and regional partnerships. It is early days but this may be the most serious crisis yet since it is a growth upon the same system from which human rights is itself derived and all the more subversive for that: representative democracy. There are two versions, each dangerous. First what we might call the Orbán thesis, after the combative and long-serving Prime Minister of Hungary – here is an example of his characteristic engagement with the issue. Human rights are not denied but rather framed as an aspect of a particular (usually Judeo-Christian) culture which is in a struggle for survival with a dangerous Other (usually Muslim, presented either as terrorist or asylum-seeker). The Israelis were among the first of the blocks with this clever sleight-of-hand: human rights are not composed of legally enforceable rules but are rather what we have and those barbarians don’t and how we can win. It was given additional impetus by the ‘battle of civilisations’ which provided cover for the aggressive US militarism that followed the 11 September attacks, and it has found a recent natural home in populism: voters love to be told they are special and the easiest way to do this is by finding an enemy who can never belong.

The second version of our third challenge is similarly rooted in populism but lacks the subtlety of the Orbán manoeuvre. Epitomised in the presidency of Donald Trump, which was in turn anticipated by President Duterte in the Phillipines and seems to be about to be emulated by President Bolsonaro in Brazil, this perspective thrives on a joyous and unselfconscious refutation of human rights constructed off the back of electoral success. People with disabilities are there to be mocked, women to be grabbed at, suspected criminals to be shot, political opponents to be locked up, and so on. The UN and its ridiculous declarations of rights is there to be ignored and hopefully destroyed. It is hard to believe that such an attitude can survive electoral examination, at least in the United States, so it must surely be a passing fad. But if not, if it becomes institutionalized in the global power that seventy years ago constructed the world order that is presently under attack, then human rights do indeed face a bleak future if they survive at all.

So where then do human rights stand, as the UDHR enters its 71st year? We can be sure that further difficulties lie ahead, driven both by the ongoing migration of peoples to places that both need and don’t want them and by the pressure on human rights that is likely to be ever-increasingly imposed by global climate change. Without a powerful global patron it does seem hard to imagine human rights existing in its intended robust shape on the world stage; much more likely is the triumph of the second challenge I identified earlier, the kind of ‘neo-democratic’ system about which I wrote in a recent article. Human-rights-oriented nation states may be able to do good within their borders but with the return of a global social democratic movement seeming a far off dream, there seems little chance of even the best of them being able to do more.

The answer – if there is one – lies in regional cooperation, not only Europe as I argued recently but the Americas and Africa as well, possible even the Asian states as well. The success of human rights protection is indelibly linked to the operation of authentic representative government beyond merely the occasional country, and at this bleak moment for human rights regional may be the best hope we have.

A Remainer planning to be a Returner

 

 Why we must all be with Rees-Mogg

By CONOR GEARTY

Shortly after the 2016 referendum a friend of mind, an experienced diplomat, said of Brexit that it could best be understood as a type of cult, played out on a vast – and therefore catastrophic – national stage. We both knew of the likely range of disastrous consequences that would flow from the “decision” that the “people” had supposedly then just taken.

Since our conversation the cult aspect of Brexit has become even more evident: the setting of the day when the New Jerusalem triumphantly arises from the ashes of our European past (29 March 2019, at exactly 11pm); the blind assertion of faith in the future in the face of all the evidence that Brexit will be chaotic and debilitating; and – more recently – a growing sense on the part of the leading disciples of Brexit that the New Kingdom may take a while to emerge after all: indeed, over a period of fifty years on the estimation of Jacob Rees-Mogg in a recent exchange on Channel Four News. My friend went on to explain why so many cult followers choose death over acknowledgement of their error: they prefer to kill themselves rather than accept the deep nature of their error.  This is what we face on 29 March next year: a national suicide as an escape from the admission of terrible error – death rather than repentance and reversal.

What can those of us who are not cult members, who watch aghast on the sidelines, do? Must we assist the fatal process, seek to stop it, or just make our selfish plans to survive the liquidation as best we can, diverting our eyes from the mayhem around us, holding fast to our wallets and damn the rest? Many are working to secure a second referendum; some are add seeking to steel the will of MPs to vote down the whole thing when it gets before them in some shape or other in the Autumn; and others hope a new election will be called, and a Remain government is returned to power and so saves the day. All three options are superficially attractive and some of them – or a combination of all three – might well work. So too might the de facto surrender on all points which the Government may well feel compelled to make as the Brexit cliff draws closer – leaving the UK with all the constraints of Club membership (including the payment annual dues) but no say in its organisation or governance: a suicide of gloomy servitude.

But the difficulty with all of these options, if any of them were to succeed, is with the longer term: we have not the slightest guarantee that the Brexiteers will commit political suicide if they cannot take the country with them. Rather the reverse. They will live on, saved from collective annihilation, to preach treason and betrayal at every turn and before every audience. If Brexit were indeed to be formally reversed, UKIP would revive, and win a multitude of seats in the European parliament in the 2019 election (from which, as things stand, they will be mercifully excluded). At home the fights with the EU over the reversal of Brexit would suddenly become the new casus belli. The servitude option would produce exactly the same effect. Endless battles would ensue to take back control properly by throwing off the Brussels yoke, and damn the international agreements that would seek to stop us.

 

Nothing would be settled because none of the core problems that have given rise to this Brexit madness would have been addressed. What are these? First the sense of entitlement that pervades English culture, a sense of exceptionalism that makes even other faded post-colonial powers seem modest. Second, the ongoing absence of any kind of loyalty whatsoever to the EU, a relationship perpetually presented in transactional terms but with the bargains that come our way being always hidden while the costs get shouted from the rooftops. Third, the constitutional illiteracy of a society that boasts of having no constitution, where power is exercised informally in accordance with unwritten conventions and in which no serious reflection on the rule of law and respect for human rights has ever occurred. Brexit reversal or EU servitude would both exacerbate, not inoculate us against, these diseases of the collective mind.

So why must we be with Jacob Rees-Mogg? Every conceivable Brexit outcome overseen by Mrs Theresa May would be condemned from the sidelines by the chief Brexit cultists, who would claim they could have done better, that the “Remainers” have had their clever way (whether reversal or servitude) or that the chaos of a no-deal Brexit could have been avoided in some clever unspoken way had we been “tougher” with Brussels. The chief believers need to be in charge, leading the country over the cliff. A good start has been made with the ever perky Dominic Raab now getting his weekly tutorial in reality from Mr Barnier. But the whole ship needs to be sailed into disaster by a captain of unimpeachable cultist authority. And that is Rees-Mogg not Boris Johnston or Michael Gove, opportunists both. If it is to be surrender, servitude or chaos it must be unequivocally on the Brexiteers’ watch.

What then? Of course I hope for the best, with Rees-Mogg leading a dramatic reversal of Brexit on the eve of departure, with no domestic scapegoat to hide behind. But let’s assume the worst – that Rees-Mogg takes the United Kingdom into oblivion. That will be the end of him and his crowd as long as we still have elections – “Wait 50 years!” is not a resonant election slogan. Over time Northern Ireland will surely join de facto (and eventually de iure) with the Republic of Ireland. Scotland may be forced by chaos into independence and then a formal (fast-tracked?) application to join the EU will surely follow, and be successful.  Wales will agitate for the same. And England? I may be an emotional Remainer but strategically I am a returner. Sooner or later, its imperial delusions smashed, its constitution exposed as broken, its young people will have their revenge. A European Troika from (let’s guess) Latvia, Ireland and Greece will eventually be invited in to assess the country’s suitability for rejoining the EU. By then the Brexiteers will, on the whole, be dead or shouting from their political cul-de-sac. Rees-Mogg himself will have returned to the eighteenth century.

Of course the pain will be terrible. But it will be whatever course is now adopted – the catastrophe was the Referendum. Rees-Mogg may be right that it will take fifty years to get over it – but not in the way he believes.

Brexit and the Irish Border

In a recent Irish Times piece Chris Bickerton from Cambridge University and my colleague at LSE law Peter Ramsay argue that Ireland and the UK need to face ‘up to their sovereign responsibilities’ and ‘drop the [Northern Irish] backstop and work together to introduce a minimal land border, and to achieve a future UK-EU that preserves the close links between the two countries.’  The argument might have been stronger had Brexit been the result of a process of consultation both within the UK and with its friends beyond its borders.  But of course it was not. Foisted on Ireland in the name of a country determined ‘to take back control’ why should Ireland now forgo control of its own future to assist the UK in the horrific quandary its dash for ‘freedom’ has made for itself?

Taking back control works both ways. The backstop is not the result of some kind of elite manipulation by nefarious EU and Irish forces.  The British agreed it before Christmas last year because those in charge of their withdrawal discussions with the EU (negotiations is too grand a word) know how weak their position is, whatever purists – political and academic – might be saying about sovereignty or anything else on the sidelines of reality.  The EU timetable for the talks, the money owed and so on were all conceded without a fight for the same reason. And it will get worse: the so-called Chequers agreement (a government agreeing with itself!) has already fallen apart.

Ireland’s sovereignty is immeasurably strengthened by its ties with Europe. It would be catastrophically weakened by returning to be the poodle of the British. Ramsay and Bickerton acknowledge the possibility of deep economic damage in Ireland and (though they are sceptical) a renewal of political violence in a way that suggests that these might be the reasons Ireland should now cave in.   True there are some nice noises in the piece about the authors’ desire for a United Ireland, reminding me of those English left-wingers from the 1980s who were always disappointed to find I did not support the IRA. Imperialism has never been the exclusive preserve of the Right.

Asking the Advice of Chris Heaton-Harris MP

Dear Mr Heaton-Harris

I have written to you before seeking help from you with regard to my forthcoming lecture on Brexit and Human Rights – but I have not received a reply. The thing is that the lecture is very soon – at LSE next week and I still haven’t got much clue about the benefits of Brexit! Now I know you are dead keen on scrutinising what we academics say about Brexit for bias and so on which is why I really need your help. I’ll do my best to find good things about Brexit – I have found one possible and one potentially.  But I need more.

You are doing a book I know and are a kind of scholar I am guessing.  Let me tell you about a well-known feature of free speech.  It is called the ‘chill factor’ – someone in a position of authority (like you, a member of the government say) writes to the bosses of a bunch of people (vice-chancellors for example) asking for details about what those people are doing (say giving lectures) when everyone knows (but no one says) what is really going on is deliberately raising a doubt in the minds of these junior people whether they should do or say or write the thing of which they know the powerful person disapproves (that Brexit is a stupid self-destructive act of national suicide for example) in case they get moved against by the bosses. McCarthyism started this way – people thought the junior senator from Wisconsin was a second rate nobody but he went on to wreck people’s lives. Check out Campus Watch in the US for another example.  I doubt you could possibly have intended this kind of thing, but it risks being an effect.  I genuinely want your input so that if anyone moves against me for bias I can say you were invited to engage – better still come to the lecture!  I’ll give you an immediate right of reply.

Professor Gearty

 

Vietnam – and Brexit: Avoiding disaster

I am nearly finished watching Ken Burns’s epic documentary series  on Vietnam.  David Thomson, writing in the London Review of Books , is surely right to talk of it in terms of being (one of?) the finest documentaries ever made.

So what is the connection with Brexit?  Am I being an obsessive?

Well of course the casualties from Vietnam were direct and the horror immediate. The deaths and destroyed lives from Brexit will take longer and envelop people with no drama. But that’s not the point I want to make now.

A late episode in the series details the impact of the leaking of the Pentagon Papers. I’d forgotten quite what they signified. Commissioned by an at-this point departed Secretary of State (Robert McNamara), they were designed to get into writing the lessons of the disaster that was Vietnam. The Nixon administration tried hard to stop the New York Times running them, even fighting (and losing) a case all the way to the Supreme Court. They showed successive administrations knew that Vietnam was a disaster and consistently lied to the public while things went from bad to worse.

Remind you of anything? Exactly: those 58 studies of the impact of Brexit that David Davis refuses to publish.  These are Brexit’s Pentagon Papers. They must come out.