Why Should Britain keep its Human Rights Act?

This post was contributed by Devin Frank Law (LLM) graduate. Devin attended Bianca Jagger’s speech at the School of Law’s annual Patrick McAuslan Lecture on Friday, November 6  

Bianca Jagger

Bianca Jagger

We all see the signs in the tube, listen to the debates in the evening news and read the contrasting opinions in the Daily Mail and The Guardian.

Should David Cameron’s majority government scrap the Human Rights Act? Should they lead us out of the Convention of Europe? Should the UK exit the European Union?

On Friday 6 November 2015 long-time human rights activist and the Council of Europe Goodwill Ambassador Bianca Jagger spoke at Birkbeck to give an enlightened and informative perspective on the UK’s current human rights debate.

While Bianca’s talk did indeed have the emotion, humour and flair one might expect from a human rights rockstar (figuratively speaking) — her talk was also a well-researched and academically sound historical analysis of how Britain developed its long standing and legally robust human rights tradition.

From Magna Carta to migrant crisis

Bianca began her talk by reminding us that Britain was not always a democracy governed by the rule of law. For most of its existence England had a Monarch who answered neither to Parliament nor the people and governed with absolute authority. In the year 1215 this began to change when King John bound himself to the Magna Carta; however, and as Bianca persuasively argued, the principles emanating out of the Magna Carta took 800 years to root themselves in law culminating with the 1998 Act of Parliament — the Human Rights Act.

We were also reminded throughout Bianca’s talk that 730 years after the Magna Carta the people of Europe endured the worst abuse of authority and government power in the continent’s history. In the context of the current debate – should the UK leave the council of Europe – Bianca reminded us that following the horrors of the Second World War, the general consensus of ‘never again’ UK authorities led the way in drafting and establishing the 1950 European Convention of Human Rights.

In the context of the current migration crisis Bianca did state that 65 years after the ratification of the European convention of Human Rights, it’s odd and indeed counterintuitive that in the midst of yet another humanitarian catastrophe, British Politicians are looking to reduce and take away the rights of the people.

One might argue that British politicians are simply looking for political ways to reduce their moral, ethical and legal responsibilities; however, and through her talk, Bianca argued that ‘our’ human rights are the result of hard fought battles and elements of British Society that we the people must defend.

A weak UK Human Rights Act

Bianca JaggerThe underlining message and golden thread of Bianca’s talk was that human rights belong to the people and are there to protect the people. Everyday otherwise normal people rely on their human rights in housing and employment tribunals, in cases against their local councils and in situations where individual police officers attempt to overstep their authority. An important example is the relationship between our democratic duties as citizens and our right to protest when we feel that our political representatives have led us astray.

In closing this blog, I will attempt to leave you with a rather simplistic observation. Bianca’s argument is that we need our human rights and any attempt to weaken our legal rights is an attack on the society we have spent 800 years building.

However, I would point out the Britain’s Human Right’s legal framework is already weak. Compared to other similar countries, Germany or Canada for example, the UK’s Human Right’s Act is incapable of declaring a government decision or policy unconstitutional. If Parliament is truly intent on ignoring human rights, they can.

Perhaps than, what should be taken from Bianca’s talk and this simple observation is that it is as important now as ever before to not only defend the human rights that we do have, but to continue to build a society based on the rule of law and the individual rights of citizens i.e the battle has been hard fought but there is still work to be done.

The message should therefore be that instead of taking three steps backwards and abolishing the Human Rights Act, we should be taking five steps forward and not only protecting the Human Rights Act but actively working to strengthen it so as to ensure that our rights are truly and genuinely protected.

View the Patrick McAuslan lecture 2015 below:

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Law on Trial: The End(s) of the Legal Academy

This post was contributed by Andrew Youngson, media and publicity officer for Birkbeck, University of London

Law on TrialThe School of Law’s Law on Trial 2015 came to a close on Friday 19 June with an exploration of the Legal Academy – or rather what its role is at a time when its ends and purport are increasingly being put under the microscope.

Organised by Prof Peter Fitzpatrick, the workshop featured presentations from a trio of legal academics – and each responded to by thoughts from a further three discussants.

From the high pressured environments of the legal professional, to the complexities of ‘legitimised’ violence, to an examination of the pre- and post-war structures of the university, the afternoon event offered plenty food for thought for the gathered audience of legal academics, professionals and students.

Wellbeing in the Legal Profession

The trio of presentations was begun by Prof Richard Collier of Newcastle University who discussed his recent paper – and ongoing research – in the area of Wellbeing in the Legal Profession. During the course of his talk, Prof Collier argued that not only is there considerable evidence that interest in wellbeing in the legal profession is growing; there are multiple strands to it, including:

  • The study of wellbeing in the profession – recent articles in this area have looked at the hyper-competitive environment and the implications on social connectedness and subjective wellbeing of the lawyer
  • The impact of legal training and education programmes on wellbeing – with ever-growing pressures being put on students being reflected in an increasing uptake of on-campus wellbeing and counselling services
  • The proliferation of wellbeing programmes being run in law firms, which underlines a growing recognition of poor wellbeing in the legal profession, and the desire to tackle it

Prof Collier then critiqued these emergent areas of study, and highlighted the discourses arising from them. Among them, he noted an ‘individualised discourse’, in which attention is directed away from wider structural, political and economic forces i.e. wellbeing as a personal, not a political issue.

A further over-arching theme was the commodification of wellbeing, and how it is considered by many to be another artefact of the neoliberalist world – where ‘wellness’ is considered important primarily because it is a vital part of the profitability of the law firm.

Future research, he concluded, could examine how normalised the hyper-competitiveness/wellbeing situation is, and to what extent the legal profession is now a field only survivable by an elite class who can successfully self-manage its pressures.

In her response to Prof Collier’s presentation, Prof Fiona Macmillan questioned a university’s complicity in laying the ground work for, and perpetuating, the high-pressured environments of the legal profession.

The Law School and the Force of Law

Next up was a presentation by Birkbeck’s Prof Patricia Tuitt, executive dean of the School of Law. The relationship between law and violence, she explained, has underpinned much of her work.

Reflecting this field of interest, Prof Tuitt presented her thoughts and findings as outlined in her recent paper, which explores:

  • Walter Benjamin’s 1921 essay, Critique of Violence, in which the German philosopher contemplates the seeming paradox of an exercise of a legal right being construed as an act of violence – subject, potentially, to the emergency jurisdiction of the state.

And its applicability to a 21st Century incident:

  • In which an American law school dean recently wrote to her students, urging them to take part in protests in Baltimore – even offering to defer an exam for those who help people on the street with legal advice (read the Washington Post article)

Examining this incident within the boundaries of Benjamin’s proposition on sanctioned vs unsanctioned violence, Prof Tuitt noted that the dean’s actions could have been construed as an extortionate use of legal rights. However, she also noted that Benjamin’s Critique doesn’t adequately address the 21st Century legal system, such as the impact of human rights principles.

In his response to Prof Tuitt’s presentation, Dr Eddie Bruce-Jones, continued the conversation on the matters of the distinction between the academy and the legal system; what this might mean for the end of the legal academy; and asked whether – given the topics under analysis – the State needs the University to stay alive, or whether it merely keeps the University barely alive for its own legitimacy.

The Structure of a University

Closing the presentations for the afternoon, Birkbeck’s Soo Tian Lee examined the historical structure of a university from the perspectives of:

  • Instrumentalism
  • Idealism
  • The University-in-itself
  • Forms of life

In discussing each structure, Soo Tian examined the contexts of the university during the post-war consensus era, and the rise of the neoliberalist university in which it has become “subordinated to narrow economic goals”.

Instrumentalism and idealism are often seen as opposed, Soo Tian explained. However, he finds this to be “a false dichotomy”, and instead proposed “a relational structure” in which both instrumentalist and idealist principles co-exist. Also within this relational structure are what he described as ‘Forms of life’ – i.e. the individual habits of an institution which, though not always easy to identity, exist nontheless.

In summation, Soo Tian offered what he considered “an uncomfortable conclusion”, in that the objective of such a study such as his, can only be to lay out the proposed structure of the post-war educational institution and let it be discussed.

If an overly neat or definitive conclusion is found, he explained, “it should be killed immediately”. “Unflinching rightness is to be approached with caution”, he concluded.

Soo tian’s presentation was responded to by discussant Dr Matthew Charles, of the University of Westminster. Dr Charles spoke of the university as a special kind of community, and examined it within the context – and limitations – of Kantian theory on antinomy.

The workshop’s final half hour comprised an open Q&A opportunity between the panellists and audience members.

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Buying, Selling and Impact – ‘In the Market for Academic Research’

This post was contributed by Habibatou Gani, senior editor at the Birkbeck Law Review, Birkbeck University, University of London. The Birkbeck Law Review Conference will take place in November 2015.

Law on TrialThe fourth day of Law on Trial 2015 saw Professor Fiona Macmillan chair a panel of leading academics on the issue of ‘Scholars, Intellectuals and Research Evaluation Exercises’. The panel considered the research function carried out by universities.

It reflected on the opportunities and criteria for research funding within academic research. It ended its discussion with an engaging debate on the challenges and hopes for the future of academic research.

Prof Macmillan, of Birkbeck’s School of Law, opened the panel discussion by posing a series of questions to the panellists and the audience. She asked those present to consider how universities think about themselves as scholars and what role academics play. She introduced the panellists:

From intellectual enquiry to a tool for economic growth

Prof Ashiagbor started by saying that she wanted people to consider how universities think about scholarship. A look at Lord Robbins’ report on higher education, published in October 1963, reveals the then prevailing attitudes toward universities as intellectual incubators, within which, according to Robbins, students were exposed to intellectual inquiry.

Ashiagbor contrasts that position with the demonstrable shift in attitudes, wherein higher education and the institutions which dispense them, are seen as existing in an open market for education and competition for students. Education is seen, by the state, primarily as a tool for economic growth. Ashiagbor notes that presently, the government agency responsible for allocating the education budget falls within the auspices of the Department for Business, Innovation and Skills. Ashiagbor also wanted to introduce the idea of what she has quite interestingly coined as the ‘entrepreneurial scholar’. She says that this shift in focusing on the monetisation of academic scholarship has compelled some scholars to convert their academic research into easily digestible material.

The Research Excellence Framework (‘REF’) and the ‘impact’ criterion

Both Ashiagbor and Norrie discussed the REF and reflected on its impact on research scholarship. REF 2014 was a culmination of an assessment of research undertaken from 2008 to 2013. Ashiagbor explained that REF sought to assess the impact of research outside of academia.

Impact, in the context of REF, is defined as “an effect on, change or benefit to the economy, society, culture, public policy or services, health, the environment or quality of life, beyond academia”. Ashiagbor expressed her reservation regarding the inclusion and centrality of ‘impact’ in the task of assessing the power of research. She recalled that many, now household legal and social, concepts such as sexual harassment and transitional justice did not exist before research. She asked, how would and could one go about quantifying the impact of such research. In this vein, Ashiagbor noted that ‘REF impact’ has shifted the focus from narrowing research to mechanical and measurable output.

Norrie, spoke about his participation in REF. His approach was far more pragmatic. He noted that today the neo liberal university is what he eloquently coined, a ‘leaner enterprise’ in so far as competition for academic scholarship and funding means that universities are increasingly selective in the academic pursuits they choose to support. Equally, Norrie noted that despite the REF initiative, ‘we must remain academic communities within and outside academia’.

Alan Norrie talking on the REF panel

End of a Certain Type of Academic Work?

At the outset of his address, Motha explained that he wanted to talk about what he considered to be the end of a certain type of academic work. He said that when thinking about the impact of impact on academic research, we should remember why one enters academia in the first place. In doing so, he compared the achievements of the Feminist Judgement Project at Kent University and the MacBride judgement in South Africa.

Emerging Marketization of Education

As Motha spoke to the death of certain species of academic work, in the Q&A that followed, Prof Adam Gearey of Birkbeck Law School, sitting in the audience, intervened with a comment and question. He opined that through its discussions, intentionally or unintentionally, the panel had raised questions of work and value of work at play within education.

Prof Gearey questioned whether the REF was in fact asserting education as a market in of itself. Reshaping the discussion, Prof Gearey asked that if an ‘education market’ was being asserted, it was seemingly unregulated. He invited the panel to consider the existence of the education market and the dangers of its seemingly unregulated existence. In response, Ashiagbor saw the merits in the argument for the emerging marketization of education, owing to the discerning shift in focus within academic scholarship to competition, rather than intellectual collaboration.

The final intervention came from Dr Nadine El-Enanay, lecturer at law at Birkbeck Law School. She asked the panel, whether in furtherance of creating an education market, REF intended to bread competitive rivalry within academia. The panellists noted that REF might well have resulted in a kind of competitive rivalry within academia.

In closing, Motha expressed renewed hope that academic institutions and individual scholars, would continue to operate collaboratively, insulating themselves against commercial influences and staying true to what brought them to academia. In doing so, Motha hoped to preserve what he considered the core purpose of academic scholarship, to engage in critical thinking and research.

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Law on Trial 2015: Lives that slide out of view

This post was contributed by Kinnari Bhatt

Law on TrialI am excited to attend any seminar examining the critical ethical discourse of our time: poverty. So, I was happy to attend Professor Adam Geary’s inaugural lecture examining three very unlikely bedfellows: poverty, law and welfare.

To me, his seminar foregrounds themes of structural and endemic poverty, alienation and judicial indifference which resonate strongly in our era of recession, with its hallmark of increased poverty.

Falling outside privileged categories

The seminar provided an ethical critique of the jurisprudential turn away from social concerns, poverty and suffering. Traditional jurisprudential thought restricts its vision to the substance of the law (law as a command and legal categorisations) which deny any relationship with questions of justice.

The law itself becomes blind to social concern choosing instead, to privilege the sanctity of contract and private property, thus providing legal structure to the laissez faire hand of the free market in which judges only see ‘clients’ not fellow human beings.

In this analysis the right to earn property becomes absolutely fundamental to human liberty and freedom, making certain lives which fall outside of the law’s privileged categories, slide out of view thus reasserting their alienation. Those that slide out of view are typically the poor, marginalised and downtrodden. The law’s closest articulation of poverty is found in human rights but, as Professor Geary discussed, these rights are a weak substitute for engaging in conversations about humanity and its laissez faire principles.

Alienation, experience and solidarity

Professor Geary presented the three core themes of his paper: alienation, experience and solidarity. He started by discussing Marx’s view that life under conditions of production work to separate us from each other: a state characterised by structural and endemic poverty.

The lecture explored the works of political figures from Jack London, through to George Orwell and the poverty lawyers of the 1960s and 70s. These figures chose to submerge themselves in the experience of being poor: from Orwell joining the poor in his loathing of imperialism to Harvard Law Graduates choosing to engage with people in Harlem instead of financially lucrative clients on Wall Street.

Opening our eyes

Professor Louis Wolcher provided a comment and discussion of Professor Geary’s lecture, discussing how the first task in any ethical approach to law is to make us open our eyes to fellow human beings.

He quoted the Latin phrase ‘What the eye cannot see the heart cannot grieve over’ urging those in positions of privilege to throw off their myopic glasses blinding them to the plight of those that fall outside of positivist law’s substantive categories.

The second task is to be thoughtful about the ways in which the privileged speak on behalf of those they wish to aid. This question has no obvious solution and requires us to be mindful of our own privileged position, motivations and warns against the tyrannical descent into a superior and all too familiar narrative of charity, pity and dependency.

The seminar again demonstrated the Law School’s interest in compassion, social justice and debate.

Watch the lecture video and listen to the podcast

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