Conor Gearty Research Articles

Transnational Elite Self-Empowerment and Judicial Supremacy. Reply to Conor Gearty’s review of Transnational Networks and Elite Self-Empowerment: The Making of the Judiciary in Contemporary Europe and Beyond (OUP 2018)

Transnational Elite Self-Empowerment and Judicial Supremacy. Reply to Conor Gearty’s review of Transnational Networks and Elite Self-Empowerment: The Making of the Judiciary in Contemporary Europe and Beyond (OUP 2018)

In the Court of Public Opinion: Judicial Supremacy v. The Rule of Law. Reply to Conor Geary's review of 'Transnational Networks and Elite Self-Empowerment: The Making of the Judiciary in Contemporary Europe and Beyond' by Cristina E. Parau (OUP, 2018)

This is a brief essay in reply to a review of my monograph, Transnational Networks and Elite Self-Empowerment: Making of the Judiciary in Contemporary Europe and Beyond (OUP 2019) by LSE Human Rights Prof. Conor Gearty. Prof. Gearty’s review The Courts in Europe Today: Subverting or Saving Democracy? was recently published in European Constitutional Law Review 16 (2021), https://cup.org/2KcqRKi. research underlying the monograph was sponsored by the British Academy, to whom I am very grateful. I am equally grateful to Prof. Gearty for reviewing my monograph at such length. Enviably equipped with the perspective of a human rights lawyer, Gearty draws on his first-hand observations to incisively critique my argument and make the opposite case with passion. My rebuttal will have to rise to the challenge of being commensurate in depth and scrutiny, which I have endeavoured to do below, all in the pursuit of truth, which we both seek. May an emerging synthesis be found by readers which is higher than each of our individual contributions. I shall address Prof. Gearty’s artful combination of praise and blame in hopes that our exchange may advance our understanding of latent questions of Judiciary institutions and their design (and designers) that are not getting the consideration that events urge.

MarkElliott and KirstyHughes (eds), Common Law and Constitutional Rights, Oxford, Hart Publishing, 2020, xii + 316 + (Index) 21 pp, hb, £75.00.

The Modern Law ReviewVolume 84, Issue 2 p. 413-417 REVIEW Mark Elliott and Kirsty Hughes (eds), Common Law and Constitutional Rights, Oxford, Hart Publishing, 2020, xii + 316 + (Index) 21 pp, hb, £75.00. Conor Gearty, Corresponding Author Conor Gearty c.a.gearty@lse.ac.uk Professor of Human Rights Law, LSE. email:c.a.gearty@lse.ac.ukSearch for more papers by this author Conor Gearty, Corresponding Author Conor Gearty c.a.gearty@lse.ac.uk Professor of Human Rights Law, LSE. email:c.a.gearty@lse.ac.ukSearch for more papers by this author First published: 25 August 2020 https://doi.org/10.1111/1468-2230.12577 Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinkedInRedditWechat Volume84, Issue2March 2021Pages 413-417 RelatedInformation

Anthony Lester, Five Ideas to Fight For: How our freedom is under threat and why it matters and Conor Gearty, On Fantasy Island: Britain, Europe, and Human Rights

Anthony Lester, Five Ideas to Fight For: How our freedom is under threat and why it matters and Conor Gearty, On Fantasy Island: Britain, Europe, and Human Rights

On fantasy island: Britain, Europe, and human rights

The Shorter Oxford English Dictionary gives as one meaning of fantasy: ‘A supposition resting on no solid grounds’, adding ‘(Now emphatically contemptuous)’. Conor Gearty, Professor of Human Rights Law at the London School of Economics, had a stroke of luck: Britain voted to leave the European Union (Brexit) on 23 June 2016. In a lurid preface written the following month, he was thus able to link the victorious Brexiteers with this book's target, the British opponents of Strasbourg's human rights machinery, the European Convention on Human Rights (ECHR), and its British counterpart, the Human Rights Act 1998 (HRA). All these fantasists are intent on ‘retrieving their sovereign clothes and marching off into the dark night of freedom’ (p. xv). The seven chapter headings of part two, ‘The fantasies’, ranging from ‘The myth of the marvellous past’ via ‘The inevitability of human rights’ to ‘A charter for the bad’, give a good idea of what Gearty is setting out to debunk—and to defend. Because he sees European and British history as a conspiracy to keep the powerful in power there can be no true progress in the recognition of human rights, merely a trade-off at any given time between rising demand and grudging supply. Even the ECHR and the HRA have a ‘reactionary structure’, omitting social and economic rights and allowing the rights and freedoms they proclaim to be too easily overridden by authority. (As I read those instruments, those rights and freedoms are generally not absolute but qualified.) The courts, Britain's and Strasbourg's, tend to defer to each other and the wisdom of legislatures, thereby maintaining the balance of power. Yet the ECHR and the HRA are presented to the British public by right-wing journalists and politicians as chiefly guaranteeing the rights of the bad and undeserving (though ‘those with resources in society’ have learned to use them to their own advantage).

The Crisis of Human Rights

Four recent books – by Stephen Hopgood, Allen Buchanan, Mónica Serrano and Thomas G. Weiss, and Costas Douzinas and Conor Gearty – show the need for a more systematic link between the abstract foundations and everyday life of human rights.

Conor Gearty, Liberty and Security

Conor Gearty, Liberty and Security

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

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.

ConorGearty and VirginiaMantouvalou, Debating Social Rights, Oxford: Hart Publishing, 2010, 201 pp, hb £15.75.

ConorGearty and VirginiaMantouvalou, Debating Social Rights, Oxford: Hart Publishing, 2010, 201 pp, hb £15.75.

Civil liberties and the Con-dems: Amidst the control orders squabble, Conor Gearty asks: who really runs the country?

Civil liberties and the Con-dems: Amidst the control orders squabble, Conor Gearty asks: who really runs the country?

Beyond the ‘Awkward Embrace’: Disability Rights, Dialogue and ‘Law, Love and Language’ Revisited

AbstractDespite the perceived ‘human rights revolution’ within Church teaching since Vatican II, a measure of dissonance survives between secular rights theory and practice on the one hand and, on the other, ethical thinking informed by the natural law tradition. This article examines some recent developments in that secular theory and practice for signs of possible rapprochement. In particular, it considers the way in which the emergence of ‘disability’ as a rights issue, for example in the recently ratified United Nations Convention on the Rights of Persons with Disabilities, has contributed to the transformation of equality and human rights law and so has helped shape a broader transformation of rights theory and practice. Central to that transformation has been the ambition of establishing human rights as the basis of a progressive political programme, as witnessed for example by the work of Sandra Fredman and by the Hamlyn Lectures of Conor Gearty, whose Catholic provenance makes his approach especially salient. The article concludes by considering Herbert McCabe's interpretation of Aquinas’ ethics, especially in his Law, Love and Language, and proposes some potentially fruitful points of contact between McCabe's approach and the identified developments in secular rights theory.

The Politics of Terror

In the drive to tackle extremism, debate is being undermined and fear is driving the agenda. Conor Gearty makes the case for common sense

Rights and Revelation A Study of Particularism and Universality in the Advocacy of Human Rights

The claim that theology needs to be done from within a new sense of its own location in the world requires us to engage with significant matters of public debate, in the light of that claim. The issue of human rights would seem to be an ideal case. Never has this been a more vital aspect of our culture.1 Since the Universal Declaration of Human Rights (1948), in the immediate aftermath of the Second World War, the affirmation and propagation of human rights have seemed to define Western civilisation in its adherence to both the principle of social equality and the importance of the individual. Although the strategic advantage of pointing to human rights abuses which characterised the Western political polemic against the Eastern Block countries, may have given way to something far more ambivalent, the rhetoric of human rights, if not always their practice, remains a constant in much contemporary politics, both international and national. Recent divisions over the balance between the security of the state and the rights of individuals, with respect to Guantanamo Bay in the United States and to the period of detention without charge in the United Kingdom, show the sensitivity of human rights issues with respect to our own identity as citizens of liberal democracies. But, as Conor Gearty has recently argued, a clear gap is to be observed between the present high regard for human rights on the one hand, with its concomitant language of commitment and engagement, and the marked relativism of our postmodern age on the other.2 The traditional underpinnings of rights frameworks in either traditional religious or Enlightenment terms, have given way to something altogether

Conor Gearty, Can Human Rights Survive?

Conor Gearty, Can Human Rights Survive?

TAKING BRITAIN'S HUMAN RIGHTS ACT SERIOUSLY

The Human Rights Act of 1998 was one of the first pieces of legislation passed by Tony Blair's Labour government, and as such it symbolized heady hopes for a new, progressive era in British politics and law. These high expectations were disappointed, perhaps inevitably. Civil libertarians have been critical of the Labour government's policies of regulating welfare recipients, street people, and truants and of the illiberal treatment of terrorist suspects and religious extremists. Many wonder how effective the Human Rights Act can be, if government can so easily restrict individual freedom under its auspices. In two recent works Conor Gearty celebrates the Human Rights Act, not for bold interventions or radical change but, rather, for what he deems to be the act's appropriately modest aims and limited impact. I argue that this account diminishes the philosophical and political value of human rights. I highlight four problems with Gearty's argument: his democratic conception of rights, which threatens to dilute the capacity of rights to defend individual interests against the majority; his impatience with moral realist accounts of human rights; his inattention to questions of sovereignty; and, finally, his conservative approach to the content of human rights.

Book Reviews

Books reviewed in this article: CAN HUMAN RIGHTS SURVIVE? by CONOR GEARTY CENSORSHIP AND CULTURAL SENSIBILITY: THE REGULATION OF LANGUAGE IN TUDOR‐STUART ENGLAND by DEBORA SHUGER

Ruling or Overruled? The People, Rights and Democracy

In April 2007, Canada marked the 25th anniversary of the Charter of Rights and Freedoms, the Canadian constitutional document affirming fundamental rights to liberty, security and equality. Neither the birth nor the anniversary of the Charter has occasioned unequivocal celebration. A controversial document from its inception, the Charter is still the target of what we might call boosters and bashers. The boosters champion it for protecting the rights and liberties of Canadians, for enriching democratic debate, and for enabling path-breaking decisions at the frontiers of social progress. Bashers decry the Charter for polarizing complex political issues into a battle of rights, for taking power from elected legislatures and giving it to unelected judges, thereby rendering funda mental social questions the prerogative of an arcane, elite debate. This debate is long-standing in the US, of course; there the constitution commands patriotic loyalty, yet its provisions have been at the centre of a number of controversial court cases, attended by the oft-made complaint of judicial activism. Debate about constitutional rights is now in full force in Canada's 'mother country' too, as Britain embarks on its own rights adventure with the Human Rights Act 1998. The British version incorporates the European Convention on Human Rights into domestic law in a statute, not a constitutionally entrenched document. The Human Rights Act also differs from the American and Canadian constitutions in the respect that it does not empower courts to override the legislature; indeed, as Conor Gearty

The Human Rights Act: A Success Story? Introduction

The Human Rights Act 1998 is still an infant: a child whose first five years have been marked by momentous ± and potentially damaging ± experiences. The papers in this volume seek to assess its health and prospects for a full and well balanced development. Sir Stephen Sedley introduces the collection with a wide ranging review of the progress and pitfalls that have marked these early years. In his opinion there is much positive to report concerning this `historic constitutional project' although much inevitably remains to be done. The Act is but one strand of a constitutional reform programme that includes devolution and the reform of the Lord Chancellor's role. As to devolution, Professors Tom Mullen, Jim Murdoch, and Alan Miller, and Sarah Craig report on their research concerning the use of Convention law in the Scottish courts. Professor Christine Bell and Johanna Keenan then take the analysis across the water to gauge the post-Belfast Agreement Northern Irish experience through a case study on the right to life. The Welsh perspective is provided by Ruth Costigan and Professor Philip Thomas with an account of their research at the `coal face' in the deprived south Wales valleys' communities. Their conclusions are bleak: that the area is largely an `HRA-free zone', not least as a consequence of the restructuring of legal aid. Roger Smith describes the process by which the reform of the Lord Chancellor's role has surfaced as a key constitutional issue. He considers the `appallingly handled' upheavals that led to the decision to abolish the LCD and the challenges that are yet to be addressed. Foremost amongst these is the establishment of a Commission with power to enforce the fundamental provisions of the Act. The need for such an institution is considered by Anthony Lester (Lord Lester of Herne Hill, a principal architect of the Act) and Lydia Clapinska. Two issues above all others have dominated the public's perception of the Act: terrorism and asylum. Professor Conor Gearty analyses the extent to which the laudable aims of the Act have been subverted by the government's response to the September 11 attacks. As to the latter, Shami Chakrabarti

No Middle Ground

Torture is coming in from the cold, becoming respectable, increasingly talked about not as an issue of condemnation but whether and how it may be used. In our own backyard, for instance, the court of appeal ruled that British courts were allowed to use evidence obtained under torture in the cases of terrorist suspects, as long as British officials were not complicit in the torture. The UN Convention Against Torture, to which the UK is a signatory, says that ‘any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings’. This way, as Conor Gearty says, the UK ‘remains a torture-free zone but its moral purity is secured through the iniquity of others’. Attitudes to torture have been central to the history of liberal democracy and individual rights. During the Enlightenment, torture was eliminated from the penal process, and there was a brief moment, after World War II, when a plethora of human rights declarations seemed finally, as Stanley Cohen says, to signal ‘victory for the abolitionist case’. But torture did not go away. Later in the twentieth century came torture in the name of national security and self defence – by France in Algeria, Israel in the Occupied Territories and Britain in Northern Ireland – often accompanied by the euphemisms with which we’re becoming familiar again: ‘special procedures’, moderate physical pressure’, ‘depth interrogations’. And now we have a ‘war on terror’ and there are clear messages from governments of every variety that we must have access to the product of torture (this despite the fact that it is fairly widely accepted that evidence obtained this way is unreliable). The images coming out of Abu Ghraib prison have become not just symbols in the Islamic world of the horrors the US inflicts on Muslims, but justifications for the use of torture by other countries. And in the groves of academe there is now serious discussion about regulation. In our new world order, the argument goes, we need torture, even if we are against it; we should not cover it up but have it supervised by judicial bureaucrats – with controls, restrictions and guidelines. The Abu Ghraib images also force us to look at who we are and with what we are complicit. With torture there is no middle ground. Accepting its official use, perhaps more than anything else, must surely lead us to ask whether such a change of attitude to human rights and civil liberties constitutes a kind of defeat for us – and a victory for the terrorists

Book Reviews

Books reviewed:Conor Gearty (Ed.) TerrorismLaurence Miller, W. W. Norton Shocks to the System: Psychotherapy of Traumatic Disability SyndromesJane Franklin (Ed.) The Politics of Risk SocietyChester A. Crocker and Fen Osler Hampson with Pamela Aall (Eds.) Managing Global Chaos of and Responses to International ConflictChris Chapman and Stephen Ward Project Risk Management: Processes, Techniques and InsightsGene I. Rochlin Trapped in the Net: The Unanticipated Consequences of ComputerizationRhona Flin Sitting in the Hot Seat: Leaders and Teams for Critical Incident Management