To repeal or not to repeal the Human Rights Act 1998? This is the key question Conor Gearty addresses here. The vote in the UK in June to leave the European Union was underpinned by rhetoric of “taking back control”, “democracy” and “freedom”, driven by nationalism and the belief that retreating from Europe was the best way forward. After Brexit, the next potential “victim” could be the HRA, and possibly the European Convention on Human Rights, the treaty on which it is based. It is against such a backdrop that this book offers up a defence of the act.
Gearty’s aim is to show “the true place of the Human Rights Act in Britain”. He proceeds on the basis that critiques of the HRA are “fantasies” that have created the vision of a “fantasy island”. His task is therefore to dispel these myths in order for fantasy to collide with reality. He confronts the “myths of the marvellous past” by showing through history and case law that common law was insufficient to protect human rights. He concedes, however, that even if one were to view the current state of common law as a great vehicle for the advancement of human rights, this is due to the influence of the HRA.
What exactly are the fantasies that plague the argument for the repeal of the HRA? Gearty highlights four: “the supremacy of the Human Rights Act”, “the supremacy of the judges”, “the supremacy of Strasbourg” and “a charter for the bad”. Skilfully weaving through a selection of cases and articles of the HRA, Gearty dispels these four fantasies and shows that they have arisen because of a lack of proper understanding of the functioning of the HRA. When it is properly understood, Parliament remains supreme; our Supreme Court judges do not always follow Strasbourg’s case law, although in some cases there is a “dialogue” with Strasbourg. Gearty also demonstrates through several examples that the HRA is not a charter for the bad but one that has protected the vulnerable.
If these are fantasies, then what are the facts? Gearty is excellent in demonstrating that the HRA ensures justice and fairness for all and should not be repealed. His argument against its repeal, however, hinges on the reader agreeing that the above-mentioned claims are fantasies. Although he does a great job of portraying these four points in that light, it is clear even from his analysis that unanswered questions remain. For example, decisions made by the UK courts on incompatibility of an Act of Parliament with the European Convention on Human Rights have led to changes in legislation in the UK. Therefore, even if on a strict reading of the HRA Parliament is supreme, in practice, Parliament is influenced by the decisions of the Strasbourg court; hence the belief that it is judges who are supreme may not be altogether a fantasy.
In spite of the above criticism, On Fantasy Island is an excellent read and a much-needed contribution to the debate on whether the HRA should be repealed in favour of a proposed British Bill of Rights. But the outcome of Gearty’s hope that his book will prove “less an obituary than preparation for a second coming” is one that we will have to wait a bit longer for.
Rachael Ita is lecturer in law, University of Derby.
On Fantasy Island: Britain, Europe, and Human Rights
By Conor Gearty
Oxford University Press, 256pp, £18.99
Published 8 September 2016