The Legal Protection of Human Rights: Sceptical Essays edited by T.Campbell, K.D.Ewing, and A.Tomkins (Eds.). Oxford: Oxford University Press (2011) 522pp. £80.00hb ISBN 978-019960608-5

Abstract

This edited volume takes as its starting point the ten-year legacy of the Human Rights Act 1998, drawing on work by 24 scholars. As the title suggests, the critical stance of this collection of essays, which emerged from a workshop held in March 2009 by the School of Law at King's College London and the Centre for Applied Philosophy and Public Ethics at Charles Sturt University in Australia, reflects a doubtful view of the rise of court-centred means for achieving the aims of the human rights project. In support of this view, a fascinating variety of accounts are offered, mapping out the various failings of law courts around the world to make effective use of their powers to protect rights. The sheer variety of human rights issues touched upon by this book, and the range of jurisdictions from the UK to Finland, Sweden, New Zealand, Australia, Scotland, Canada and the United States, will appeal to a wide readership. Two categories of critique of the juridification of human rights are drawn upon: ideological and institutional. Using an institutional critique of the UK's courts in the post-9/11 landscape, Adam Tomkins paints a compelling picture of the House of Lords’ general failure to protect individual liberty in the midst of successive governments’ reliance on national (and international) security interests. Notwithstanding the happy exception of the Belmarsh case,11 A and Others v. Secretary of State for the Home Department; X and Another v. Secretary of State for the Home Department (2004) UKHL 56. Tomkins argues that the willingness of the House to defer to security considerations in anti-terrorism cases has been overwhelming. A historical consideration of British civil liberties is extended backwards to the 1960s in K.D. Ewing's stimulating perspective on the English judiciary's involvement in Cold War issues – essential reading for anyone wishing to understand the provenance of the current debate on protest rights. Ewing draws the convincing, if not slightly depressing, conclusion that the rise of human rights in courts has done little to change the relationship between national security and civil liberties as it stood some 50 years ago, such that today's ‘defenders of liberty’ face much the same sort of prosecutions as did members of Bertrand Russell's Committee of 100 in the early 1960s. In a parallel to the Cold War issues, Aileen McColgan catalogues the failures of the English courts to respond to the human rights abuses perpetrated by the British state in Northern Ireland between 1967 and the mid-1980s. Another context is provided by Sionaidh Douglas-Scott's analysis of the role of the European Court of Justice and the Area of Freedom, Security and Justice, arguing that the European Union has never given human rights a sufficiently central place in its order. The second part of the volume, ‘Politicizing Human Rights’, considers the nature of rights in the context of political institutions, as opposed to courts. Mark Tushnet queries the default assumption that courts are the institutions best placed to protect fundamental rights. Rather, Tushnet argues, legislatures and executives are able to develop defensible specifications of fundamental human rights which may ultimately provide more effective protection. The controversial US Supreme Court case of Roper v. Simmons (2005) (No. 03-633 543 US 551), is clearly explained in Jeremy Waldron's chapter, leading to an interesting discussion of whether foreign law should be cited in American courts in deliberations on rights issues, and the relationship in the United States between reliance on foreign law and the legitimacy of strong judicial review. Conor Gearty concludes the volume by attributing the slow progress in developing rights protection to the de facto distaste of the two major UK political parties for the Human Rights Act, most notable in the Conservative Party overtures to repeal the Act, combined with a concurrent embrace of the rights’ language of the Act. This results in a practical discussion of what would be entailed in the repeal of, or the making of debilitating amendments to, the Act. The binding theme of this volume is that the future of effective human rights protections may lie in political and democratic tools. The majority of contributors to the book coalesce around an argument that human rights responsibilities ought to be more strongly centred on the political arena, and in particular, that the legislative scrutiny of existing and proposed human rights bills should be strengthened. The collection of essays in this volume represents a significant scholarly contribution to debates about the Human Rights Act 1998, supporting a broadening of focus, from the internal content of rights’ jurisprudence to a consideration of alternative means of their protection.