On 20 November, Lord Sumption (Justice of the Supreme Court) delivered the 27th Sultan Azlan Shah Lecture in Kuala Lumpur – The Limits of Law. This was followed by Lord Justice Laws on 27th November in the Hamlyn Lectures 2013 – see Lecture 3 Common Law and Europe. A further lecture on human rights was delivered in Warwick by Lady Hale (Deputy President of the Supreme Court) on 28th November – Lady Hale at the Warwick Law Lecture 2013 – What’s the point of human rights?
These speeches / lectures are not only legally informative but they reveal something of the personalities of the speakers and their attitudes to the vastly important topic of human rights protection as it applies both in Europe and in the UK. Given the fact that these speeches are by senior judges, politicians are likely to latch on to them when they are thought to support a particular political stance. It is of course no secret that some members of the present government do not come across as particularly supportive of the present human rights arrangements – see, for example, Theresa May and Chris Grayling on Human Rights – (Public Law for Everyone 30th September 2013).. Thus, judges enter risky territory when making speeches of this nature. They must not only maintain their judicial impartiality but must be seen to do so.
At one point in his lecture, Lord Sumption said this:
‘The text of the Convention is wholly admirable. It secures rights which would almost universally be regarded as the foundation of any functioning civil society: a right to life and limb and liberty, access to justice administered by an independent judiciary, freedom of thought and expression, security of property, absence of arbitrary discrimination, and so on.’ He added: ‘Nothing that I have to say … is intended to belittle any of these truly fundamental rights.’
At another point, Lord Sumption said:
‘Personally, if I may be allowed to speak as a citizen, I think that most of the values which underlie judicial decisions on human rights, both at Strasbourg and in the domestic courts of the United Kingdom, are wholly admirable. But it does not follow that I am at liberty to impose them on a majority of my fellow-citizens without any democratic process.’
Here is the nub of Lord Sumption’s problem with the present system of human rights protection. He views it as having gone too far to the detriment of political solutions to rights problems. For Sumption, the European Court of Human Rights (E Ct HR):
‘ … has become the international flag-bearer for judge-made fundamental law extending well beyond the text which it is charged with applying. It has over many years declared itself entitled to treat the Convention as what it calls a ‘living instrument’. The way that the Strasbourg court expresses this is that it interprets the Convention in the light of the evolving social conceptions common to the democracies of Europe, so as to keep it up to date. Put like that, it sounds innocuous, indeed desirable. But what it means in practice is that the Strasbourg court develops the Convention by a process of extrapolation or analogy, so as to reflect its own view of what rights are required in a modern democracy. This approach has transformed the Convention from the safeguard against despotism which was intended by its draftsmen, into a template for many aspects of the domestic legal order. It has involved the recognition of a large number of new rights which are not expressly to be found in the language of the treaty. A good example is the steady expansion of the scope of Article 8. The text of Article 8 protects private and family life, the privacy of the home and of personal correspondence. This perfectly straightforward provision was originally devised as a protection against the surveillance state by totalitarian governments. But in the hands of the Strasbourg court it has been extended to cover the legal status of illegitimate children, immigration and deportation, extradition, aspects of criminal sentencing, abortion, homosexuality, assisted suicide, child abduction, the law of landlord and tenant, and a great deal else besides. None of these extensions are warranted by the express language of the Convention, nor in most cases are they necessary implications. They are commonly extensions of the text which rest on the sole authority of the judges of the court. The effect of this kind of judicial lawmaking is in constitutional terms rather remarkable. It is to take many contentious issues which would previously have been regarded as questions for political debate, administrative discretion or social convention and transform them into questions of law to be resolved by an international judicial tribunal.’
Here, there is much to take issue with and in a post of this nature I must confine my comments to just a few points.
a) The Sumption lecture lacks balance in that it fails to put the case FOR the living instrument doctrine. I touched upon the FOR case in my previous post (here) and need not repeat it. I gave an example – (gender recognition) – of how the living instrument doctrine enabled the law to develop and to eventually encourage democratic parliaments to take action which they might well not have done otherwise. The living instrument doctrine is not applied in as cavalier a manner as Sumption’s lecture might suggest. Typical Strasbourg judgments are replete with references to numerous international rights documents and the practices of other democratic states – as the prisoner voting case itself illustrates – Hirst v United Kingdom (No.2) 2005. Perhaps to a point the E Ct HR is reflecting its own view BUT it is a view based on evidence of actual practice as it has developed across Council of Europe States and elsewhere. This is far from being the personal opinion of individual judges.
b) ‘ … so as to reflect its own view of what rights are required in a modern democracy.’ Sumption goes on to illustrate his point by citing Article 8:
Article 8 – Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
It is true that this has seen a remarkably extensive application to actual cases. Nevertheless, it is not difficult to see how this right will become engaged in many of the situations where Sumption is critical of its application: the legal status of illegitimate children, immigration and deportation, extradition, aspects of criminal sentencing, abortion, homosexuality, assisted suicide, child abduction, the law of landlord and tenant etc.
Speaking here as a citizen, I find it difficult to support Sumption’s view that – ‘None of these extensions are warranted by the express language of the Convention, nor in most cases are they necessary implications. They are commonly extensions of the text which rest on the sole authority of the judges of the court.’
The very text of the Convention requires the judges to apply Convention rights to actual cases and “express language” is neither required nor desirable to enable the right to be upheld in relation to matters such as the deportation of an individual with a family etc. The writers of the Convention deliberately avoided the excessively detailed approach to drafting which characterises UK legislation. A straightforward statement such as – “Everyone has the right to respect for his private and family life, his home and his correspondence” – is a clear invitation to the E Ct HR (itself created by the convention) to apply that right to the multitude of factual situations which arise and many of which could not be foreseen. Indeed, in the future, new situations will inevitably arise. Should we have to await a cumbersome process of amending the Convention when 47 States are involved?
c) The Sumption view that rights should only be developed via political processes is itself problematical. Political processes are not always minded to address matters of concern, especially where the matter affects a relatively small number of individuals. Furthermore, politicians often become highly concerned with State power (or their legal authority as an executive) and, in doing so, fail to consider the impact of their policies on the individual. It is precisely here where rights protection becomes important since the Convention system stands between citizen and State.
d) Another problem inherent in the democratic process is that the political party in power will consider that it has a mandate to do certain things. This has led to many ‘political footballs’ in the UK: such as Education and Health Care. Political Party A does this and then Party B gets into power and does that. The time taken over such political battles tends to leave little time for proper attention to protection of rights. To my mind, the Sumption view of the democratic process appears to be somewhat idealistic. He seems to consider that it will inevitably develop rights and thereby make it unnecessary to have an approach to development of rights such as the living instrument doctrine. Even if he is correct, there could well be a very lengthy time lag before politicians are persuaded that there will be votes in making a change or, perhaps more likely, votes to be lost if they do not act. Furthermore, they may choose not to act at all.
e) Sumption also uses the prisoner voting issue to challenge the E Ct HR. He sees a democratic deficit and illustrates this by reference to the Hirst and Scoppola judgments. ‘In both cases, the Court’s reasoning revealed its limited interest in the democratic credentials of such policies.’ However, his lecture might usefully have pointed out that it is only the total ban which the court found to be objectionable and, in doing so, the court examined practices across Europe. Even a cursory glance at the Scoppola decision will show that the E Ct HR did not find a problem with the Italian system which is more restrictive than the UK policy in that it permits, in some instances, a ban on voting to continue after release from imprisonment. It remains fully open to the UK Parliament to introduce a quite minimalistic compliance with Hirst No.2 and, indeed, this is currently under consideration.
In his lecture, Sumption said that in R (Chester) v Secretary of State for Justice (previous post) the Supreme Court held that it was bound to follow the law repeatedly declared by the Strasbourg court. Such a simplistic statement would attract criticism from any examiner of a first Law Degree answer paper. Why? Because it is not an accurate summary of the Supreme Court’s decision which recognised that in some situations the Supreme Court might not follow even a consistent line of Strasbourg decisions. This would be when the Strasbourg decision(s) challenged a fundamental feature of the laws of the UK.
f) It is, I think, instructive to consider what Lord Sumption said at para 121 of his judgment in Chester.
‘A decision of the European Court of Human Rights is more than an opinion about the meaning of the Convention. It is an adjudication by the tribunal which the United Kingdom has by treaty agreed should give definitive rulings on the subject. The courts are therefore bound to treat them as the authoritative expositions of the Convention which the Convention intends them to be, unless it is apparent that it has misunderstood or overlooked some significant feature of English law or practice which may, when properly explained, lead to the decision being reviewed by the Strasbourg Court.’
That is, of course, a correct statement of the law as developed from the Ullah principle. However, in his lecture, Sumption implies strongly that the judges ought to have agreed with the Attorney-General when he asked the Supreme Court not to apply Hirst and Scoppola. In Chester, it was open to Lord Sumption to have given a dissenting judgment accepting the Attorney’s position. He did not do so.
There is much more in Lord Sumption’s speech but, speaking as a citizen, I have made the points that I wish to make. The future of human rights protection is in the balance in this country. I do not have faith in many modern politicians to bring in adequate protections in the event that they get their way and take us out of the European Convention. It is, to say the least, very doubtful whether there would be adequate protection in the event of withdrawal from the convention and repeal of the Human Rights Act 1998 – (on this see Oxford Human Rights hub – Professor Brice Dickson). Ultimately, one has to ask why would a politician wish to hazard rights protection. The answer lies, to my mind, in a single word: POWER.
I will look at the views of Laws LJ and Lady Hale in a later post.