Five Ideas to Fight For: How Our Freedom is Under Threat and Why It Matters by Anthony Lester (review)

This important book was evidently motivated by its subtitle. The author sees the principal threat to human rights as the manifesto pledge of the incumbent UK government to “scrap” the Human Rights Act, the 1998 statute by which the European Convention on Human Rights (ECHR) was incorporated into UK law and so made justiciable in the national courts.

Lord Lester of Herne Hill, QC, is probably the UK’s most eminent human rights barrister. As a member of the House of Lords (for the Liberal Democratic Party), he is also a legislator. In earlier days as a Labour Party supporter, he was an adviser to the Wilson government of the mid-1970s. He was also the founding chair of Interights, a British human rights NGO that sadly ceased to exist in 2014. Before he began his professional career, he was a graduate student and civil rights advocate in the United States. Like this reviewer, he was an admirer of the US Supreme Court under Chief Justice Earl Warren. This was relevant to his constitutional law practice in the Commonwealth.

It is this range of experience that Lester brings to the book. The issues he writes about reflect his own experience as lawyer, government adviser, legislator, and NGO activist. It is not an autobiography and he does not restrict his coverage of cases to those he has litigated, but the overall selection of issues and sub-issues are the synthesis of his life’s work.

For it is that work and its achievements that Lester rightly believes to be under threat, not just in the UK, but also around the world. After a period of seemingly inexorable rise of human rights discourse and the universal legitimation of it, we have seen a serious pushback; whether from the “War on Terror” or the need to respond to an Islamist fascism that glories in inflicting cruelty and advancing gender apartheid or fear of mass flows of foreigners against what had somehow become the human rights orthodoxy. This is the second book I have reviewed that is aimed at stemming the pushback.¹

The very fact that the book is the result of a lived experience makes for engaging reading. There are five chapters, whose titles themselves seem more chosen as vehicles than as separate ideas, yet somehow that is no obstacle to communication. They are: human rights, equality, free speech, privacy, and the rule of law.

The first chapter, “Human Rights,” gives a summary introduction to the idea of human rights and to the origins of the Council of Europe and the ECHR as a response to the enormities of the Holocaust and World War II. Its main focus is on the ECHR and the UK’s uncomfortable relationship with it. Lester stresses the Convention’s focus on civil and political rights, rather than economic and social rights, as “judges have no competence or experience to decide how to create a health service or tackle poverty, or make the trains run on time.”² The result was a convention that is “as British as roast beef and Yorkshire pudding.”³

Lester traces the history of attempts to domesticate the ECHR by statutory incorporation into UK law. The protracted resistance to these attempts over some four decades is tellingly contrasted with the decolonization practice of using the language of the Convention to entrench human rights into the constitutions of colonies being readied for independence. He is critical of the Whitehall mandarins (senior civil servants) who persuaded successive governments not to give to judges what they held should be the province of elected politicians and (more importantly, one gathers) administrators.⁴

He refers to a substantial number of high profile cases before the European Court of Human Rights (ECtHR) that the UK lost—and deserved to lose. These cases include: Dudgeon (criminalization of homosexuality in Northern Ireland),⁵ Tyrer...