Graham Gee: Rights, Independence of Mind and Conservatives

In a recent post, Liora Lazarus voices serious concerns about the composition of the UK Bill of Rights Commission. That the Commission (convened under the auspices of the MoJ) lacks diversity is indeed a cause for concern, and Dr Lazarus rightly draws our attention to it. But some of Dr Lazarus’s other claims seem less well founded, and I take issue with three in particular.

First, Dr Lazarus suggests that the Commission “has been put together in a climate of serious antipathy towards human rights”. This is a strong claim and seems to colour much of the post. To substantiate the claim, Dr Lazarus invites us to look at recent parliamentary debates on votes for prisoners and Theresa May’s statement on R(F). I’ve looked at both, but neither (to my mind) substantiates this claim. As I see it, they seem more like evidence of the fact that reasonable people disagree about difficult questions such as whether some or all or no prisoners should have the vote or whether the registration requirements for sexual offenders should be time limited. They can also be taken as evidence that reasonable people disagree about the proper role of and limits on courts in resolving such questions. Dr Lazarus is correct that political debates about rights—their content and how best to protect them—will not go away. But these debates are not well served by conflating opposition to given human rights institutions (and decisions taken by them) with opposition to human rights per se. If we fail to attach sufficient weight to the fact that people can share a genuine and wholehearted commitment to rights even while disagreeing about how best to realise that commitment, we are perhaps more likely to attribute malign motives to, or to too readily dismiss the views of, those whose approach to the protection of rights differs from our own.

Second, Dr Lazarus is concerned about “the independence of mind” of certain of the Commission’s members. Now, independence of mind can never be proven and its absence is normally difficult to verify. It is also something appropriate in some—but not all—decision-making contexts (as Nick Barber’s post below draws out). Lets assume, though, that independence of mind is something to be prized in the Commission’s members. Dr Lazarus’s concern seems directed to Martin Howe, Jonathan Fisher, Anthony Speaight and Michael Pinto-Duschinsky—“a group of pamphleteers and campaigners” as Dr Lazarus describes them. The same concern does not seem to apply to Anthony Lester, Philippe Sands or Helena Kennedy—who are praised variously for authoring important textbooks, their “lifelong work” or being well-known human rights lawyers. It is not clear to me why this concern applies only to some of the members. Is it because Howe, Fisher and Speaight are closely identified with the Conservative Party? Possibly, but this concern would also apply to Lord Lester and the Liberal Democrats or Baroness Kennedy and the Labour Party. Is it because the former write mostly in pamphlets whereas the latter develop their views in longer, more academic publications? True, pamphlets—like blog posts—encourage the forthright expression of strong opinions on complex issues in just a few words. It is also true that the more detailed treatment of a complex issue in an article or book should expose authors to the nuances of opposing arguments. Yet, I’m not sure that we can safely rely on pamphleteering on some issue as necessarily stronger evidence of a closed mind than more academic treatments. Could it perhaps be that Dr Lazarus’s concern arises because Howe, Fisher, Speaight and Pinto-Duschinsky have to date been opponents, not supporters, of the HRA? But, then again, need we not be concerned about the independence of mind of known supporters of the HRA?

Third, Dr Lazarus correctly points out that there are a number of academics who are sceptical about the legal protection of rights, and suggests that they might have been better candidates for serving on the Commission. This may be so (though we may have to wait some time before we find out if those with more obvious expertise in human rights were asked to serve on the Commission but declined to do so). For now, Dr Lazarus concludes that “the Conservative Party is not served by selecting a group of pamphleteers and campaigners just because they support their view” and that this, in turn, “speak[s] to the anti-intellectualism of the Conservative Party”. Leave to one side the possibility that some measure of anti-intellectualism within political parties might be no bad thing. Also put to one side the possibility that the Conservatives are no less and no more anti-intellectual than most political parties. I want to question instead whether it is right, even if it is commonplace, to characterize the Conservative Party as anti-intellectual. If “anti-intellectualism” denotes a reluctance to engage with ideas, the characterisation seems inapt. As E.H.H. Green noted, “[i]t may be that Conservatives produce fewer ‘great texts’ (although they produce and refer to more than is frequently assumed) but if one sets aside the formal, ‘canonical’ notion of the forms of expression of political thought and examines speeches, policy-making discussions, exchanges of views and opinions in correspondence…the Conservatives’ engagement with ideas is clear, rich, varied and extensive”. If “anti-intellectualism” stands for hostility to reason, then again the characterisation seems inapt: as the work of Michael Oakeshott helps to clarify, the Conservatives are not opposed to reason, but to approaches to reason that at the same time deny the epistemic value of practice, tradition and the established way of doing things. Conservatives are perhaps better conceived not as opposed to intellectualism, but rather to certain intellectual conceits—and the fetishizing of form, order, rigid prescriptions and universal solutions to local problems in particular. Opposition to such intellectual conceits goes some way to explaining why some amongst us believe that political processes rather than judicial processes—including those pursued in foreign courts—are more effective for protecting rights.

No doubt there were a great many machinations behind the convening of the Commission, and some of these might cast the Conservatives in a very poor light. But most Conservatives share a commitment to human rights and are open to the lively exchange of ideas, including from academics. We should not forget this, even (and perhaps especially) where we disagree with them.

Graham Gee is a Lecturer in Law at Birmingham University.

7 Comments

Filed under Constitutional reform, Human rights

7 responses to “Graham Gee: Rights, Independence of Mind and Conservatives

  1. Obviously you are entitled to your opinion even when it is wrongly held.

    In my opinion, reasonable people do not, like the 1922 Committee, summon David Cameron into some backroom in the Commons and dictate to him that a) he curb the power of IPSA to allow MPs to continue fiddling their expenses unchecked; and
    b) curb the power of the ECtHR.

    Reasonable people do not, like the Backbench Business Committee, draft an unlawful motion, conduct a sham debate, and then vote to keep the status quo denying convicted prisoners their human right to vote.

    The UK had every opportunity to answer the question ‘Whether convicted prisoners should have the human right to vote?’, but abdicated responsibility for the issue before it was decided in the affirmative by the ECtHR in Strasbourg. Following this ruling in Hirst v UK (No2) all that remained for reasonable people to do was amend s.3 of ROPA 1983 to make it compatible with Article 3 of the First Protocol, thereby fulfilling the UK’s obligations under the Convention. However, for over 5 years these so-called reasonable people did nothing!

    Reasonable people do not attack the ECtHR after being found guilty of a human rights violation. The UK voluntarily signed up to the Statute of the Council of Europe. Agreed to abide by the Convention and accept the jurisdiction of the Court and abide by the Court’s decisions. Reasonable people do the right thing and not the wrong thing.

    Clearly, you have mistaken unreasonable for reasonable.

  2. Liora Lazarus

    I entirely agree with both Nick Barber and Graham Gee that there is room for reasonable disagreement between individuals about human rights. This is why I am concerned that the Commission is dominated by lawyers. It is also why I share unease with the idea that courts are always best placed to provide answers to many rights questions. Let me make it clear, I would welcome a genuinely representative Commission with a range of expertise that can address these broader moral and political questions. So mine is not a call for a Commission made up only of technocratic supporters of the Human Rights Act. But I do hold the view that many of the Conservative Party members cannot be described as having good standing and experience in the field of human rights and constitutional law and politics generally. I cannot see how Gee can defend their credentials, and no I’m not concerned that they oppose the HRA.

    As for my view on the current antipathy to human rights. Let’s not get confused. There is plenty of talk going on in the commons debates about which political or judicial institutions get to decide about rights. Equally, there is lots of discussion about ‘judicial activism’, the original intentions of the drafters of the ECHR, as well as the UK’s original intentions when it joined the Convention Regime. But this institutional debate isn’t matched by a balanced deliberation about the substantive rights themselves. Such a debate ought to range beyond the legal wording of the rights and delve into the background moral principles behind these provisions. Parliament ought to be ideally suited for such a job. But notwithstanding the excellent work of the JCHR, the discussion on prisoner voting or sex-offender rights in the Commons rarely engaged with the substantive issues at stake. We heard almost no discussion of the nature and importance of the right to vote itself, or about its integral relationship to the sovereignty that Parliament holds so dear. Nor did we hear much deliberation about the right to review inclusion on the sex offender’s register. Instead, we heard lots about why prisoners’ go to prison, and why they should lose these rights, and why victims need protection. Human rights debates are high stakes debates. They require a commitment to good faith and balanced deliberation. This is not in my view an intellectual conceit, no matter what Oakeshott thinks. There are reasonable principled arguments to be made on both sides of most human rights debates. Of course if we don’t wish to engage with the fundamental issues at stake, we can always use ‘practice, tradition and the established way of doing things’ as a way out.

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