On Fantasy Island: Britain, Europe, and Human Rights

Citation

Gearty, C. (2016). On Fantasy Island: Britain, Europe, and Human Rights. Oxford University Press.

Chapter Summary

The book is about 240 pages, with an introduction, three parts (The Fantasies, The Facts, The Future), a short conclusion, a table of cases and a bibliography. It was written in the shadow of the 2015 general election, in which the Conservative party pledged to repeal the Human Rights Act 1998 and replace it with a UK Bill of Rights. The preface places the argument in the context of the referendum on leaving the European Union. Gearty defends the Act by dissecting the "fantasies" that drive the case for repeal, which he dismisses as no more than "English exceptionalism", and he reads the debate through British law, history, politics and culture.

Introduction

The opening chapter explains why the Human Rights Act matters and sets out the argument of the book: that the case against the Act rests on myths, that the facts show something different, and that the survival of the Act will have a pivotal part in the kind of Britain that emerges.

Part I: The Fantasies

The first part exposes the myths that drive the anti-Act argument. One chapter takes on "the myth of the marvellous past": the belief that the common law, without a Human Rights Act, protected liberty well. Gearty argues from history and case law that it did not, and concedes that whatever strength today's common law has owes much to the influence of the Act. Four chapters then address the four fantasies named in the book: the supremacy of the Human Rights Act, the supremacy of the judges, the supremacy of Strasbourg and "a charter for the bad". He argues that when the Act is properly understood, Parliament remains supreme, UK judges do not simply follow Strasbourg, though there is a "dialogue" with it, and the Act has protected vulnerable people instead of criminals. The chapter on Strasbourg questions the charge of overreach by the European Court of Human Rights, pointing to the UK's compliance record with the Convention.

Part II: The Facts

In counterbalance, the second part describes how the Act operates in practice and what its impact is "on the ground". Reviewers note that it shows the effects of the Act for groups such as disabled people and Travellers, and the way in which social and economic rights begin to find a place in British law.

Part III: The Future

The third part looks ahead to the kind of Britain we want to live in, and how the survival or otherwise of the Act will play a pivotal part in it. Reviewers connect the closing discussion with British identity, devolution and Brexit, and describe the outlook as uncertain, dependent on political will and the evolution of legal interpretation.

Conclusion

A short final chapter. Gearty hopes that the book will prove "less an obituary than preparation for a second coming".

Key Concepts

The Fantasies

• English exceptionalism: the belief that Britain needs no external supervision of its rights, which Gearty treats as the driver of the case for repeal.
• The four fantasies: the supremacy of the Human Rights Act, of the judges and of Strasbourg, and the idea of a charter for the bad.
• Declaration of incompatibility: the Act's remedy for a statute that conflicts with Convention rights, which leaves Parliament to respond.

The Facts and the Future

• Compliance with the Convention: the UK's record of implementing Strasbourg judgments, used against the charge of overreach.
• Repeal and the Bill of Rights proposal: the political context for the debate.
• Rights and national identity: the reviewers' observation that the dispute has cultural and identity dimensions as well as legal ones.

Critical Analysis

Strengths

• A clear structure. The three parts, fantasies, facts and future, make the argument easy to follow. La Vie des Idées (Anne Cousson) calls it a clear introduction for readers new to the debate, supported by a thorough analysis of the case law.
• Engaged with political context. The book connects the legal rules to the 2015 election, the Brexit referendum, devolution and public discourse.
• Accessible. Reviewers describe it as highly readable and not a dry legal text.

Limitations

• Advocacy. Lord Sumption, reviewing in the Law Quarterly Review, called the book serious and valuable in places but thought that it fails to acknowledge counter-arguments, uses abrasive rhetoric and will cheer those who already agree; he found the portrait of opponents unfair to the more thoughtful objectors. Cousson makes a similar point about painting the opposition with a broad brush.
• Open questions. Rachael Ita, in Times Higher Education, notes that the case for keeping the Act depends on accepting that the four claims are fantasies, and that the influence of declarations of incompatibility on legislation suggests the judges' role may not be entirely a fantasy.
• Dated by its moment. The text was written before the Brexit referendum result and responds to the Conservative repeal proposals of 2015, so later developments need to be read elsewhere.

Where It Fits in the Course

Within this course list, On Fantasy Island is a short polemical introduction to the Human Rights Act debate in Britain. Amos's Human Rights Law and Harris, O'Boyle and others' Law of the European Convention on Human Rights give the doctrine that Gearty only draws on, and should be read alongside it. Gearty's own Civil Liberties gives the historical and theoretical background, and his Liberty and Security is the wider argument about inequality and counter-terrorism.

Kavanagh's The Collaborative Constitution addresses the relationship between courts, Parliament and the executive in protecting rights that Gearty treats in Chapters 5 and 6. Möller's The Global Model of Constitutional Rights and Wacks's Privacy: A Very Short Introduction widen the view to proportionality and privacy.

How to Use This Book

The book is for undergraduates in public law, human rights or politics, and for general readers who want to understand the debate over repeal. No prior legal knowledge is required, though a basic understanding of the Human Rights Act helps.

A suggested route:

• Read straight through. The argument builds from the fantasies to the facts and the future.
• Core chapters: the four chapters on the supremacy claims and the Strasbourg chapter, which answer the most common objections.
• Pair with doctrine. Read the sections on specific cases alongside the judgments and with a standard text on the Human Rights Act.
• Read a critic. Set Sumption's review against the book and decide which side the evidence favours.