REVIEWS: Bonfire of the Liberties: New Labour, Human Rights, and the Rule of Law by K. D. Ewing

Publication Date01 Sep 2010
AuthorJames A. Grant
K. D. Ewing, Bon¢re of the Liberties: New Labour, Human Rights, and the
Rule of Law
,Oxford: Oxford University Press, 2010, 310 pp, pb d19.9 9.
Keith Ewing has written an excellent and damning indictment of New Labour’s
record on human right s and the rul e of law, ma rshalli ng his evide nce with ease
and greatnarrativepower. It is a real tour de force. Inan earlier book, Freed om unde r
Thatcher: Civil Liberties in Modern Britain (OUP, 1990), co-authored with Conor
Gearty, Ewing argued that the abuses of civil liberties in the Thatcher era were
so severe that the introductio n of a bill of rights would be futile. Gearty has since
been converted to defend the Human Rights Act 1998 (HRA), but Ewing
remains deeply sceptical. He argues in Bon¢re of the Liberties that, under New
Labour, ‘if anything the situation is now worse, much worse’ (7). There is, he
writes, ‘a contradiction at the he art of the New Labour project ^ more rights but
less liberty; more iconography but less good practice’ (vii). As well as document-
ing the government’s ‘contempt for liberty’ (1) ^ which, somewhat dubiously, is
thought to be ‘more striking for the fact that it is happening on the watch of a
Labour administration’ (15^16) ^ the book aims‘to reveal the failure of constitu-
tional principle in terms of the rule of law, and the futil ity of rights as a defe nce
against State power in the modern British constitution (2).
What is odd about this book is that Ewing appears to take aim at the wrong
target. He condemns the HRA for its futility and insists that ‘a wrong call was
made in 1998’ (284). But the real villains in Bon¢re of the Liberties (aside from the
government, of course) are the British judges, not human rights in general and
not the HRA in particular. Legislation may be only as good as those who apply
it, and Ewing makes a reasonably convincing case for thinking that the British
judiciary have often failed to enforce the European Convention of Human
Rights (ECHR) in the face o f increasing government might. However, although
the judiciary’s failure has limited the e¡ectiveness of the HRA, he goes too far in
arguing that it is therefore futile. The HRA is a very cleverly conceived piece of
legislation, even if, because of the failure of the domestic courts (in some cases),
litigants still have to rely on the European Court of Human Rights. Ewing
believes that, once there is more radical parliamentary scrutiny of legislation for
compliance with huma n rights, sections 3 and 4 of the HRA ^ and thus a l arge
part of domestic rights-based judicial scrutiny^ will be rendered redundant, with
the Strasbourg court continuing to act as a longstop.
Ewing’s analysis of the fail ure of human rights a nd the rule of law unde r New
Labour begins with the growth and abuse of police powers. Explaining that the
courts have been willing totolerate unlawful conduct from the police, he accuses
the courts of securing justice at the expense of legality (43^44). For the most part,
his evidencehere is compelling. But few readerswill be convinced by his example
r2010The Authors. Journal Compilation r2010The Modern Law ReviewLimited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2010)73(5) 883^902

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