Cameron & The Human Rights Act

The Human Rights Act has become for David Cameron what the fox-hunting ban was for Tony Blair: when in a spot of bother with your own support, wheel out something bound to please them.

In his article in the Sunday Express today the prime minister is quite right to note that “[t]here are deep problems in our society that have been growing for a long time: a decline in responsibility, a rise in selfishness, a growing sense that individual rights come before anything else.” He might even be right to say that we “need a concerted fightback against the wrong-headed ideas, bureaucratic nonsense and destructive culture that have led us to this” situation.

So is there to be a renewed effort to tackle corporate lawlessness, or the mindless consumerism that has created a 24 hour, seven-day capitalism so destructive of family life? (It seems “family is back at the top of the agenda.”) Are we to begin this reclaiming of the better parts of our past by returning to Sunday trading laws for example, or by instituting a guaranteed living wage so as to give all workers the means to live decently and be better fathers and mothers as a result?

No it’s none of these, or anything like it. It’s those old Tory favourites, welfare spongers and human rights ‘abusers’: the fightback “means rebuilding the sense of personal responsibility that has been eroded over the years by many things, from the welfare system where work doesn’t pay to the twisting and misrepresenting of human rights.” And “though it won’t be easy, though it will mean taking on parts of the establishment, I am determined we get a grip on the misrepresentation of human rights….. We are going to fight in Europe for changes to the way the European Court works and we will fight to ensure people understand the real scope of these rights and do not use them as cover for rules or excuses that fly in the face of common sense.”

The prime minister is right that it “won’t be easy” – this is because it is impossible. The days are long gone (if they ever existed) when continental Europe listened carefully to their English masters and did what they were told. The Prime Minister knows this, just as he knows that British bill of rights or no British bill of rights, the UK is not about to withdraw from the Council of Europe (home to the European Convention on Human Rights and the maladjusted court about which he affects to obsess so much) anytime soon. Even he must be aware how utterly foolish he looks when his foreign minister wanders the world preaching human rights like some latter day ethical colonialist while he continues to thrash human rights at home. Maybe the Iranians are right and we need their human rights monitors?

In truth this is just noise, a way of getting the old Europhobes excited, pleasing his geriatric xenophobes and annoying the Lib Dems: a silly season story by pseudo-silly people hoping the nonsense they peddle will divert attention from what they are not doing.

Stark Raving Starkey

I first encountered David Starkey in the late 1980s. We were debating freedom and civil liberties together in a BBC2 programme chaired by Jonathan Dimbleby. It was the first time I had ever been on TV as I recall, but even then my opponent seemed to be a seasoned media performer, holding forth to all and sundry before the show, assuming (as he always seems to) that everybody would want to hear him speak for as long as he felt like talking.

The debate involved me taking a civil libertarian line critical of the Thatcher government and Starkey saying things weren’t at all bad. Then an incredible thing happened. Starkey came out on TV – declared himself Gay but unpersecuted. Dimbleby turned delighted to me, ‘so what do you make of that then Dr Gearty, ah ha’ (or words to this effect). I sort of said ‘okay, good’… Clearly they all knew it was coming, a fab scoop on as live TV.

Then another amazing thing – Starkey didn’t know me, had never met me but had listened to enough of what I had said to detect an Irish accent, a sort of proper country accent not West Brit or even Dublin. ‘Now Conor like me comes from a poor background…’ he began to proclaim, on no basis other than how I spoke.

So there you have it: an obsessive self-publicist and casual maker of racist assumptions, even then over twenty years ago.

A New Book-as-a-Blog

I am launching a new book on the web, on 6 October 2010, The RIghts’ Future. 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?

Should Academic Lawyers Want To Be Understood By The General Public?

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 submissions to a parliamentary body on a matter on which he is expert. But how many people will read your book, was Professor Twining’s reply – and it was left rather hanging in the air.

At a time when the public purse is being so closely scrutinised, do those of us who make a living off the taxpayer in the higher education field not have some sort of obligation to explain what we do? After all I get a lot more money than an MP, and it strikes me that my accounting for it should include learned books maybe, but well-prepared teaching and efforts at public engagement for certain. Surely there are enough hours around to be able to teach say an average of four or so hours a week (over the year) and write a few words a day for the tiny circle of readers of the specialist stuff, while also being able to help colleagues run the Department and still having enough time left over to be able to engage with the general public as and when the opportunity arises?

Gaza

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 message is also aimed: will he cower like the vast majority of his predecessors, more concerned with lobby popularity than with moral purpose, or is there more to him than this? Let us assume Obama knows full well both how shameful is America’s association with Israel and how senseless is his nation’s collusion in such vast criminality. There are ways of marking this without making it explicit and thereby unleashing the pro-Israeli forces against him at too early a stage.

It is already clear that the new Administration desires to re-engage with the global community and to revive its commitment to international law: the ‘war on terror’ will be reconfigured and Guantanamo closed. A rededication of the US to law should also involve a more consensual approach to the UN in general and to Security Council business in particular, and this should include (for example) support for UN investigative missions to regions where egregious violations of human rights and breaches of the UN charter need to be investigated. It should entail signing up to the International Criminal Court – and urging its closest allies to do likewise. Done in this way, US engagement in the international human rights agenda would quickly lead to a re-empowerment of the various forces for good, the rapporteurs, special representatives, committees of experts and so on, that have languished on the margins for so long.

All of this reformist energy would then need to be backed by mechanisms linking US financial and military aid to the newly emerging international legal order, a fresh set of McBride principles of the sort that eventually forced South Africa racism to its knees. And economic and intellectual boycotts would also need to be framed so as to lie in wait for the worst offenders against the new dispensation. Since its application would be general, Obama could do all this without ever mentioning Israel, leaving the consequences to be worked through by various bureaucracies while the ‘phone calls and special pleas of Netanyahu or Livni or Barak or whoever it is go either unreturned or politely fended off with an easy ‘it is out of my hands’. When the screams of the special interests reach dangerous levels, the president may then judge it to be necessary to take the issue to the American people, to discuss openly whether Israel should have a special exemption from the civilised values to which every other true ally and the US itself will by then have signed up. That is not likely to be a debate which the Israeli leadership will especially want.

Dreadful though they are, it is just possible the killings in Gaza may prove to be the beginning of the death rattle of Israel’s disastrous plunge into militant Zionism.

The Economic Collapse

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 concerted character assassination, and so have lost vital weeks of pre-election Attwater activity) but he is also more likely to be able to govern. Expect a great shift in our language towards equality and fairness: socialism may not be back yet, but social justice is.

Should Ian Blair resign?

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 relation to his highly peripheral involvement in the Balcombe Street siege, what kind of an approach did he take to his day-to-day work at the Met? Now, thanks to the conviction of his force for breaches of health and safety law arising out of the shooting dead of Jean Charles de Menezes on 22 July 2005, we know something of this, and what has emerged is extremely disturbing, both in terms of the Met itself (a force out of control) and at a personal level as well (a chief officer mislead by his own senior officers). There is more to come on Thursday when the Independent Police Complaints Commission (IPCC) publishes its account of the killing, an investigation which Sir Ian tried hard to stymie. Stoutly defended by those in authority, the Commissioner is nevertheless under increasing pressure to depart his office, the media criticism rising daily to a crescendo which few public servants would be able to resist.

Should Blair resign? The constitutional answer, at least pending the IPCC report, is clearly no. The purpose of the prosecution of the Metropolitan Police Service that produced last week’s conviction was to hold the organisation, not any individual within it, criminally responsible for the mistakes that in combination cost Mr de Menezes his life over two years ago. The relevant authorities had looked carefully at, and ruled out, bringing charges against particular officers. The law is clear that the appropriate accused in health and safety cases is the culpable corporate entity, not any of its senior officers. Nor should the range of mechanisms of accountability which are in place to oversee the conduct of the Metropolitan Police Commissioner be ignored simply because they do not produce the dismissal (or insistence on resignation) that the media demand: the Metropolitan Police Authority, the London mayor and the Home Secretary have a duty to interpose their own rational assessment of what is required between the public and the media on the one hand and an embattled Sir Ian on the other. This support may erode with publication of the IPCC report but the present indications are that it will add nothing radically new to what is already in the public domain. The Commissioner is technically entitled to stand his ground, saying that there is no seismic explanation for the earthquake that is threatening his position on the highest perch in British policing.

In the UK constitutional system, however, it is rarely safe to rely on technicalities. The untenability of Sir Ian’s position does not derive from the law nor from any particular action on his part (though the perception of a pattern of sharp dealings – of which the Balcombe Street false reverie was one – has not helped). Rather it is a matter of the withdrawal of public confidence, the sucking away of respect that can almost be physically heard and of which the hostile media are mere messengers. This derives in turn from a strong sense that the force’s conviction under health and safety legislation was simply not enough to capture the full sense of what was wrong about the killing of Jean Charles de Menezes. It seems almost insulting to treat the shooting as though it were some kind of accident at work, when in fact it was no such mishap but rather a series of shots fired into an already apprehended suspect with the intention of killing him. The relevant officers having escaped all charges for murder or even manslaughter, it was inevitable that once these facts became known the furore would grow for a greater level of accountability than has occurred here. Trapped by the decision not to prosecute the officers concerned, the Commissioner cannot say the obvious, that they stepped outlandishly out of their mandate when they acted as they did. As a result he must now take the rap for charges that were never brought.

In the absence of any murder charges, much better in this case would have been proceedings under the Human Rights Act for a breach of de Menezes’s right to life under Article 2 of the European Convention on Human Rights. Since the controversial ruling of the European Court in the Gibraltar case in 1995 (arising out of the SAS shooting of three IRA operatives on that island), it has been accepted that this provision imposes obligations on a state not to construct a counter-terrorist operation so badly that the officers on the ground end up believing that they have no option but to kill. The array of errors uncovered by the prosecution in the de Menezes case recalls the mistake-strewn run-up to those particular shootings. This would have been a better basis for a court to have probed why it was that so many officers had persuaded themselves that this innocent commuter was a dangerous terrorist who had to be stopped at all costs.

The answer might well have been found in the very language of terrorism itself. Though it emerged in the course of the criminal proceedings that the policing choices which were to lead to de Menezes’s death were not part of Operation Kratos, the then secret shoot-to-kill policy which the police had put in place to tackle suicide bombers, the quasi-military atmosphere of such deadly counter-terrorism manoeuvres hung over the whole affair. Once the police had persuaded themselves that they were facing a fanatical terrorist rather than a potential criminal, the urge to stop at all costs inevitably overwhelmed the more traditional instinct to apprehend and to charge. It is in the way that it disrupts our sense of justice and fairness and our instinct for proportionality that the language of terrorism does so much of its most damaging work, making police actions like this highly likely at times of high anxiety, and inuring us to draconian invasions of our rights that we would otherwise refuse to countenance. The pressure on Sir Ian is not an explosion of irrational wrath but rather reflects the great anxiety that is felt by many about the way in which the counter-terrorism atmosphere of our times is slowing (but inexorably?) changing the character of the society in which we live.