The case against common law

Professor Conor Gearty likes to take potshots at the holy cows of English and Walsh law. He snipes at our much-admired common law, for instance, which, he claims, doesn’t live up to its reputation for protecting civil liberties.

He also debunks our proud assertion that - unlike those pesky foreigners - our own judges are infinitely wise and resolutely apolitical.

Gearty doesn’t call these comfortable notions ‘holy cows’, preferring ‘fantasies’, but his aim is sure and for one member of the audience, at least, he (to hopelessly mix metaphors) leaves lots of ducks dead in the water.

He even adds insult to injury - in some quarters - by openly supporting the judgments of the European Court of Human Rights in Strasbourg.

Admittedly, Gearty is professor of human rights law at the London School of Economics (LSE) and so we could dismiss his views as yet more ravings from a left-wing academic. Or is there any substance to his Tory and Daily Mail baiting?

From whence his views? He tells an audience at the LSE (6 November) how in the 1980s he was teaching constitutional law to first-year students, telling them about this country’s ‘independent rule of law; the availability of remedies for all, without fear or favour; the common law’s marvellous protection of civil liberties… and all the rest of it’.

And yet, he says, beyond the classroom, many British citizens - striking coal miners, Campaign for Nuclear Disarmament marchers, even his own students protesting against education cuts - were being routinely beaten up by the police and ‘their liberty eroded by mass bail conditions’.

This was politics – rampant Thatcherism, I hear you cry. Surely our impartial judges would have stepped in and imposed the rule of law! Not according to Gearty. ‘The courts were happy to act as benign legitimating forces,’ he says, ‘their various rulings serving to throw the necessary constitutional camouflage over successive exercises of raw state violence.’

The judges continued to turn a deaf ear to the clarion call of common law until the early 1990s, Gearty says. They persisted in suppressing freedom of expression in their ‘absurd determination to prevent publication of a book (Spycatcher, by Peter Wright) containing serious allegations of criminality against the security services,’ he says. 

And then there was internment in Northern Ireland and, in England, extended detention without trial along with miscarriages of justice that saw the Guildford Four, among others, imprisoned for years for no good reason. And still the judges failed to speak up, he says.

In time, he continues, the judiciary, without being called to account, was responsible for demolishing the cosy ‘fantasy’ of this country’s constitutional law that he had taught his first-year law students in the 1980s. The fantasy was gone, he says, ‘believed by no one, exposed as a construct founded on deceit’.

Gearty claims that the next generation of judges ‘took to human rights as their penance for past sins’ and when they got the Human Rights Act, ‘for which many of them had quietly campaigned… (did) immense public good’.

The upshot, according to Gearty, is that the human rights generation of judges has now largely gone, while today’s judiciary has allowed itself to forget - or never learn about - the sins of the past. It has become so complacent that some have come to believe that, supported by edicts from Strasbourg, the ‘law is so wonderful that it ought to have superiority over parliament itself’. 

Or so the Conservative party purports to believe, although Gearty asserts that this ‘fantasy of judicial supremacism is a delusion… guided by advisers no doubt to invent a problem in order better able to curry favour with the electorate by dealing robustly with it’.

What the Tories affect to have forgotten, he adds, is that both our Human Rights Act and the European Convention on Human Rights specifically mandate the principle of parliamentary sovereignty. Or to put it more simply, they say parliament doesn’t have to do what the courts tell it to do.

A case in point is prisoners’ voting rights. Strasbourg handed down the ruling as long ago as 2005, and yet prisoners in the UK are still unable to vote. The Supreme Court, moreover, has not felt moved to put pressure on the government to allow prisoners to vote. So what price, in Gearty’s words, ‘Strasbourg supremacism’?

Gearty says that the Strasbourg court has ‘rescued the English common law from itself on far more occasions than it has made itself an unnecessary nuisance’.

He instances the bad treatment of gay people on account of their sexual orientation, corporal punishment in schools, draconian contempt laws that hinder campaigning newspapers seeking to achieve change and ‘cruel’ invasions of privacy – ‘all unnoticed by the common law’s supposed celebration of individual rights’.

A convincing argument, some would say, to recognise the contribution of the Strasbourg court in making England and Wales fairer places for their citizens. And not at all yet more ravings from a left-wing academic.

Jonathan Rayner is Gazette staff writer

Follow @JonathanRayner1