Professor Conor Gearty

Have you always been a supporter of human rights?

I have actually spent a long time being strongly opposed to any laws that entrench human rights in the constitution or in any other way here in the United Kingdom.

On democratic grounds?

Initially because I couldn’t stand the English judges and as an Irish person in England in the 1980s my views were greatly influenced by cases that arose from what we used to refer to as ‘the troubles’. My opposition then broadened to other grounds. Even so, it doesn’t follow that I am opposed to human rights as such. It is true to say that, having build the case against human rights laws on anti-judicial and anti-democratic grounds, I found myself also very puzzled by the concept of rights.

About where they come from?

Exactly. So there are three layers to my concerns: one relating to judges (they have been lousy on civil liberties’ issues); democracy (the people should decide); and philosophical.

Do you have a different view of the judiciary than you did then?

The Cold War is over. What was nearly at times a civil war in Ireland is over. Quite a lot of pressure relating to national security is off the British judiciary. Even so, the judiciary’s record on terrorism is mixed. On the one side, there is the Belmarsh decision, the findings on control orders and some part of the decision on admission of evidence obtained by torture. On the other, there have been restrictive decisions on police powers and national security. It is a mixed record – even since the Human Rights Act.

So, you see the change in the judiciary as essentially a political one?

I just don’t think the judges see a threat to the state from international terrorism in the same way as their predecessors saw, for example, from Irish terrorism. I think there has been a change of perception. I don’t know if it dates from the scandals of arms to Iraq, Matrix Churchill or the Iraq war and the dodgy dossier. Senior judicial figures are much more inclined now to challenge executive assertions in the field of national security. It’s a kind of sociological fact. It is to do with what we are today. Certain figures among the judiciary have engaged in a liberal perspective in a way that senior figures in the past would not have done. The judges that founded my opinion of the judiciary were people like Lords Widgery, Diplock, Lane and Denning. You only have to name them to see how different the atmosphere is now.

You don’t see the judges as less deferential to the executive?

I don’t go so far. I am nervous about extending the notion of the rule of law to increase the power of the judiciary relative to Parliament.

Did you approve of the Human Rights Act when it was first proposed?

My line at the time was that I was very much opposed to the option for a human rights bill that would give the judges power to strike down Acts of Parliament. I was pretty relaxed about judicial review of executive acts on the basis of convention criteria. I was interested in, and not hostile to, the idea of declarations of incompatibility, hoping that this would lead to a situation of dialogue and not command from on high. So, the Human Rights Act fitted met my democratic objective. Practice has reflected the changes that we discussed. That leaves the philosophical issue.

If there is a conflict between democracy and values, where do you stand?

If the democratic system remains in place and I have lost a battle over the civil liberties that I prefer or an economic, social or cultural right then I want to be left with the option of a democratic fight.

So, if Parliament brought forward legislation that was blatantly incompatible with the European Convention and subject to a declaration of incompatibility?

I would fight the political battle and I would accept that it is going to be dangerous to impose my views on the populace. I accept the outcome that my values might lose. I said previously that this is subject to a condition – ‘if the democratic system remains in place’. If the democratic system starts to destroy the level playing field of discussion – for example by restricting access to the media for certain categories of people or views – then this would become a very difficult challenge for us all. Things would then be so serious that judicial protest might not be enough. In an extreme position, we need more than judges. Take as an example a difference between ourselves and the United States. The President or Prime Minister refuses to call an election. In the US, the judges should uphold the constitution and require one. In this country, resistance to elections would have to be stopped by democratic action. I would hope that there would be mass demonstrations. I would prefer to keep the judges out of it.

What about if Parliament passed legislation to return people to countries where there was a reasonable prospect that they would be tortured?

This is an ethical position. I don’t think we should leave it to the law. I am optimistic that the legislation might be overruled by lively political debate. A bad result would be to rely on court decisions that might include a negative one in Ramzy [a referral to the European Court of Human Rights which would reverse the current position]. Those who live by the courts die by them. The European Court would, in such circumstances, be wrong but there are fewer arguments to fall back on.

What would you say generally about the health of civil liberties and human rights?

The recent British social attitudes survey is interesting. It shows two things. First, support for civil liberties declined during the mid 1980s, after which it has flattened out a bit. There has definitely and distinctly been an erosion of support. Second, when you put the fear of terrorism into the pot, the willingness to give up civil liberties is marked. The situation is very vulnerable. People are forgetting why they were in favour of civil liberties. If we don’t engage the British public with really good examples as to why civil liberties are good for us all, it will just take very few terrorist criminal calamities to do enormous damage. Things are very brittle. I am not alarmed but I am concerned.

Finally, let us move to the centre here in LSE. What objectives did you have? Have you met them?

The objectives were clear to me: to bring some of the ambiguities and uncertainties of my approach to human rights to the academic arena; to form a base of support for the values of human rights; to subject human rights to critical analysis and intellectual rigour. And to do this through public events, research projects and working with students. We have worked on all three fronts. It’s really for others to say if we have succeeded.

And what of your general sense of where we are at the current time?

There is, simultaneously, great anxiety and great solidarity. I am optimistic that the cultural roots of human rights have gone quite deep. For example, I have just been teaching some police officers about human rights who wanted that before they listened to MI5. I have found that the idea of human rights has filtered into unexpected places in British society. They will be very hard to eradicate.