Quick thoughts on an interaction with Baroness Hale, Robert Spano and Tim Eicke KC by The City Law School’s Professor Dimitrios Giannoulopoulos…

‘Let’s put some emotional power behind the European Convention on Human Rights (ECHR)’, the inimitable Brenda Hale said to a room packed with leading ECHR experts last week (November 6^th), at the beginning of a conference jointly organised by the Bingham Centre for the Rule of Law (at BIICL) and Leicester Law School, to celebrate the 75^th anniversary of ECHR and 35^th anniversary of the Venice Commission of the Council of Europe. She was speaking at a panel alongside Robert Spano, former President of the European Court of Human Rights (ECtHR) and Tim Eicke KC, the UK Judge – until a few weeks ago – at the Court. 

Baroness Hale of Richmond, the legendary first female President of the UK Supreme Court, immortalised in our legal culture chronicles as ‘Spider Woman‘, spoke with her characteristic panache and strikingly direct way, quickly adding that ‘stirring people’s emotions (about a good thing like the ECHR) is not a bad thing’.

Labour is rather ‘taking the fight on their opponent’s terms’, she observed, and they will not be able to beat Nigel Farage at his own game. The perennial optimist that Brenda Hale is, however, she insisted that we should ‘not be too downhearted by this’ or the broader political moment we are experiencing. Young people give us hope, she insisted; she has a wonderful reaction from young people up and down the country, every time she speaks to them about our human rights, she explained. We have ‘the law on our side’, she is stressing to them, taking inspiration from the eponymous title of her new book which takes the reader into the ‘complexities of real courts and real decisions [to show them] that we all have rights: schoolchildren, disabled people, workers, minorities and patients’. She has written the book to draw attention to the positive stories that we need to share with the public, about what the ECHR has done for the UK. We ‘cannot ignore the deleterious effect [that a potential] withdrawal [from the ECHR would have]’. But we also need to ‘emphasise all the positive stories’ and ‘get across to the general reader’, Baroness Hale insisted. 

Judge Spano, the former President of the European Court of Human Rights, had just most eloquently elaborated on how vulnerable the UK is to the rising populist threat; there is ‘no other country as massively vulnerable to illiberalism’ as the UK, he went so far as to suggest, adding that ‘the idea that UK Judges will somehow be immune’ to democratic backsliding was ‘fanciful’.

The UK was ‘at the forefront of potential threats’, he insisted, partly because, in the absence of a written constitutional charter, there was no possibility of domestic courts striking down populist legislation. We should therefore explain to the British public the human stories about what happens in countries where there is democratic backsliding, and the reality we would be confronted with if we one day left the ECHR, he concluded. We need ‘good communicators’, even ‘influencers’ on Tik Tok, to tell these stories, and we can use a ‘reasonably aggressive language’, it was intriguing to then hear Judge Spano say (Tik Tok later also got a mention from Baroness Hale, while just a week earlier I had listened to the Lady Chief Justice, Baroness Sue Carr, say exactly the same thing – this time in relation to judicial independence – about the same social media platform, at an ‘in conversation’ event at the Honourable Society of the Inner Temple).   

I have been working on the question of how we can effectively fight back against the anti-human rights populist narrative and channels of disinformation, focussing on public human rights education and engaging our young people, for some time. So, I warmly welcomed from the floor – and I warmly welcome it now – Judge Spano’s emphasis on ‘reasonably aggresive[ly]’ communicating to the broader public our commitment, as a liberal democracy, to human rights.  

At the same time, I am sceptical, I explained to Spano, about whether we should be doing that crucial work through the lens of what (evil) will happen to the UK if we one day leave Strasbourg; the Remain side did that in the EU Referendum, I pointed out, and it did not go down well with the public. As Deinová and Brusenbauch Meislová explain:  

…the Remain campaign’s approach in the 2016 Brexit referendum demonstrates both the potential and limitations of fear-based appeals in political communication. While fear appeals can effectively capture attention and prompt action, they risk backfiring if they are perceived as exaggerated or manipulative.  

The risk that a pro-human rights but fear-centred narrative would be perceived as ‘exaggerated or manipulative’ cannot be ignored, especially when one takes into consideration the communicative firepower that the nationalist populist right currently possesses in the UK and the anti “establishment” rhetoric they are building momentum for (see an intervention I have made on human rights in the media here).

When one also considers literature on emotions in politics that associates the politics of fear with established elites (see e.g. F. Furedi, Politics of Fear: Beyond the Left and Right, Bloomsbury, London, 2005), the risk that politics of fear on the ECHR would quickly be linked with ‘establishment’ human rights judges and ‘elitist’ academics exponentially increases. If that fear-centred narrative also drew on foreign experiences, of democratic backsliding in countries where this has already taken effect, as Spano suggested, the counter narrative of a common law-based, rest-of-the-world-following-suit on human rights, British exception would most likely quickly be triggered. 

‘Excessive reliance on worst-case scenarios can foster cynicism, leading audiences to question a campaign’s credibility’, Deinová and Brusenbauch Meislová conclude, and it is particularly thought provoking that their own research also suggests that ‘contrary to common belief, fear appeals did not overwhelmingly dominate Remain’s messaging’. Which further exemplifies the risks of centring on the negative. 

‘We have to learn the lessons of Brexit’, Tim Eicke explained, in agreement. We must focus on what the Convention has done well, how it has effected positive change.  

For all its importance, the issue of exactly what the pro human rights narrative must concentrate upon is still of secondary importance, I would suggest, in the context of the invaluable conversation in the panel discussion with Baroness Hale, Spano and Eicke. What will have instead stood out to the audience, I believe, was how all the eminent speakers in the panel spoke with one voice about how urgent it is to connect with the public, to make people aware of our human rights.  

We must enthuse young people, was Baroness Hale’s key message in that respect. ‘I thoroughly agree’ with educating our young people in schools about rights and the Constitution, she said, in reaction to my mentioning that the UK government had just the day before released a long-awaited national curriculum review which was placing renewed emphasis in the statutory primary curriculum on ‘democracy and government’ and ‘law and rights’. 

Judge Spano went even further, so I will conclude with that.  

We need ‘counter-populism’, he pointed out, a ‘shocking’ observation, he also noted, ‘coming from a former human rights judge’.  

It is an intriguing proposition, a populist defence of human rights. Research I am currently undertaking focuses precisely on whether we can indeed do that (where do we draw the line), and if yes, how we are going to do it and who will have the capacity (the moral capital) to act as the bastion of that pro-human rights populist approach. 

Professor Dimitrios Giannoulopoulos is the Head of Department at the City Law School (Academic Programmes) and an Academic Bencher at the Honourable Society of the Inner Temple. He has previously founded and directed the ‘Britain in Europe’ academic thinktank and ‘Knowing Our Rights’ project.