A René Cassin roundtable discussion (held under the Chatham House Rule)
Thursday 31 October 2019 at Matrix Chambers, London
Keynote speaker Professor Philippe Sands QC
Chaired by Daniel Silverstone (chair of René Cassin Board of Trustees)
Background
An invitation-only roundtable discussion to consider the current status of the rule of law in the context of current UK politics.
The session aimed to answer these key questions (amongst others):
Key points raised by participants
- Can the UK restore its position that is absolute commitment to the rule of law?
- Is legitimisation of the opposition the risk of engagement?
- Is there a need for a long term strategy of democratisation?
Between pessimism and optimism
- When the European Convention on Human Rights (ECHR) was drafted, the focus was on extending protections. Now it is on rearticulating the rule of law. The rule of law has been compromised.
- For the first time in the UK we have headlines describing judges as ‘enemies’ of the people – a mark of change in direction.
- However, the government’s efforts to dislodge human rights and the rule of law has resulted in a backlash.
- The rule of law enables people to be heard and for optional rights e.g. Economic Social and Cultural rights to be heard.
Where the UK stands in relation to the rule of law
- It is of concern that the Prime Minster and the Attorney-General disagree with the Supreme Court decision on proroguing Parliament rather than respect it.
- UK’s continuing commitment to respect the framework set by ECHR has slipped off the agenda. It receives limited mention in the new Brexit Political Declaration.
- UK used to be seen as the bastion of human rights with rights fairly applied by independent courts.
- The UK’s reputation on the international stage has collapsed and its soft power has been lost, but this is not being discussed. Examples include the UK’s standing in relation to Syria, prioritising trade with Turkey over human rights, and failing to follow up the International Court of Justice’s finding that the UK occupation of the Chagos Archipelago Islands is illegal under international law. There are also domestic examples such as the government’s crackdown on the right to protest. The UK is only one step behind Hungary.
- There is total collapse of the UK’s reputation on international political stage.
- At the same time there continues to be external support for the UK judiciary.
Undermining the rule of law
- The Conservative Party undermines UK’s position in favour of internal political priorities.
- The rule of law is a political project about who has power and where power lies.
- Policy Exchange’s long term Judicial Power Project co-opts the language of the rule of law to undermine it.
- It is a long term strategy to stop Hale-like liberal judiciary.
- Focusing on democratic populism and the far right, Policy Exchange is winning the arguments.
- Linked to the Federalist Society in the US, they have a long term strategy to stop judges being liberal.
- Dominic Cummings has said “law is a pain to power”.
- Lance Forman (Jewish) Brexit party MEP is an example of Brexit Party’s agenda to bring in minorities, in order to legitimise what is a far right party.
- Judicial reviews lead to uncertainty whereas absolute executive power leads to certainty.
- Defence of human rights and the rule of law are parallel to defence of political and Parliament and the danger of a ‘people vs. Parliament’ [- joint project?]
- Need for speaking law to power
- Law and politics are still fundamental values / principles. The question is what do we do in engaging with people with whose opinion we abhor as the danger is that engagement is legitimisation.
Interest in human rights values
- The 1945 settlement, which led to citizens’ and groups’ rights taking precedence over the state’s, is under threat.
- There are opposing views as to whether the human rights edifice is reasonably solid. Lots of people are interested in and committed to human rights values, including Conservatives.
- The challenges to human rights and the rule of law have galvanised people.
- People are demanding a voice to shape our national identity.
- Since Grenfell social, economic and class rights have been taken on more substantially. There is a gap for new coordinated initiatives.
- There is a need to apply the rule of law on issues that affect people from the opposite side rather than just focusing on the judiciary.
The role of the human rights movement
- Human rights movement is not clear where values and principles begin and where politics begins. Fear of being seen as impartial.
- Human rights movement needs a political strategy to address the political project.
- It does not always work for the movement to be associated with political left when it comes to implementation of values.
- In the lead up to the Holocaust, the Nazis developed and increased their use of racist language. There is a need to call out such language.
Where do we go from here?
- There is a lack of a long term strategy to defend international legal order. We need to create a political strategy and a stronger sense of shared solidarity amongst ourselves.
- There is confusion between values and principles versus politics. We need to return to the liberal basis of human rights and apply values to issues.
- We need to make rights more relevant to people. Instead of legal and technical arguments, we can redefine rights as economic, social and cultural rights which relate to people’s day to day reality.
- Identify allies to partner with
- The defence of politics and parliament are important. There is a danger in running a campaign on people versus parliament. Law and politics are not in competition with each other.
- We need to ratify the optional protocols of the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights to allow individual petitions to be heard.
- Need to create stronger sense of solidarity around rule of law and human rights values by addressing inequality.
- We need to engage on social and economic rights and inequality before we can get traction with rule of law and human rights.
Need to find a way to talk about rule of law and human rights not just amongst ourselves but with those interested in the significance of the ‘1945 moment’
