WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
July 13 2024
WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
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Democratic Delusion

Democratic Delusion

Pic: Patrick Maguire
Untitled: Patrick Maguire

Rishi Sunak’s government should be a corpse awaiting interment. After four successive victories at the ballot box (incongruously coupled with gradual turning to sudden economic decline), the Conservatives have no right to expect an unprecedented fifth term in Downing Street. But in continuing testament to the decision-making of the British people, the opinion polls suggest that nails have not yet been hammered down on Conservative prospects. With the government looking into a chasm where its achievements are supposed to be found, any electoral success must come from stoking fear and prejudice. Over the next year, speeches and policies attacking minorities and the institutions that protect them, like the Home Secretary’s recent apogee against multi-culturalism, will become the norm.

In this vein, Jonathan Sumption, the former Supreme Court justice turned conservative commentator, is doing his best to lend legitimacy to what should be one of the government’s more esoteric causes – leaving the European Convention on Human Rights. Writing last week for the Spectator, he laments the influence of the European Court of Human Rights (ECtHR) on British democracy, particularly the use of Article 8 (which protects an individual’s private life) and its use of interim orders (which maintain the status quo before a full decision is made). The ambition of the piece seems to be to set out the objective reasons for leaving the ECHR. The reality is a rehash of the same tired arguments that the right has always levied at the Convention and its court.

Given Sumption’s intellectual pedigree, this is astonishing, made more so by the fact that despite being a highly regarded lawyer, judge, and historian, there is a void where his evidence is supposed to be. One of the few substantiated objections relates to a case that, while not named, is presumably Al-Skeini. In this case, the ECtHR was concerned with whether the Convention also applied to prisoners detained in British bases in Iraq. Ruling in 2011, the judges concluded that they did, albeit in a reduced way that recognised the straitened circumstances British soldiers were operating in. What it did not do was force British soldiers to follow the same procedures as ‘policemen turning in pickpockets at a European police station’.

Such partisan hyperbole should be beneath Sumption, as should be the flawed analysis he goes on to put forward. According to him, Al-Skeini was an outrageous interpretation of the Convention and an unwarranted expansion of the ECtHR’s power, ignoring its precedents. His assertion is that the Convention applies solely to the ‘territorial jurisdiction of the parties’. Only those on European soil should get Convention rights. The fact that the Convention makes no mention of territorial jurisdiction, but jurisdiction writ large, is an inconvenience Sumption prefers to ignore. So too is the fact that the Court has upheld Convention rights extraterritorially in a military context since 1975.

Sumption’s only other substantiated bugbear is the court’s use of interim orders. These orders – which have been exercised with relatively little outrage for years – leapt into public

consciousness last year when the ECtHR used them to stop the Home Office’s deportations to Rwanda. According to Sumption, this was an unjustified usurpation of power. This claim is ridiculous. Courts everywhere have always used interim orders. They uphold the status quo, allowing the legality of the contested act to be adjudicated before it – and its consequences – take effect. Crucially, they are only used where the contested act poses a ‘serious risk of irreparable harm’. If they were not used in this case, refugees could be dumped by the British government in Rwanda until the ECtHR issues its final decision months in the future. If the policy is found to be unlawful, the irreparable harm would have already been done. All the reasons that the Court decided that refugees should not be dumped in an illiberal dictatorship with a questionable record on upholding rights would have been borne out, with the deported refugees having vanished into the ether. The ECtHR’s decision wouldn’t be worth the paper it was written on.

Elsewhere, the piece is littered with rhetoric, but little more. Article 8 is simply ‘notorious’. According to Sumption, an article that is supposed to protect ‘against the intrusions of the surveillance state’ has extended to encompass ‘anything that intrudes upon an individual’s personal autonomy’. With ‘most laws do[ing] that, the result is to give the court the power to review the whole range of personal law’. Whatever thin substance this point contains is undermined by Sumption’s failure to acknowledge how the court has developed a nuanced conception of Article 8 that distinguishes between a state’s positive and negative obligations, as well as doctrines that curtail its authority more broadly. Among these are the margin of appreciation (which acknowledges that different states will approach different issues in different but still legitimate ways) and the doctrine of subsidiarity (which recognises the states’ authority to make decisions closer to home). Instead, he whips out a shopping list of issues that the Court has put in the Article 8 cart. These include ‘immigration and deportation, extradition…the recording of crime, abortion, same-sex relationships…social security rights…eviction for non-payment of rent’. Why exactly, he has an issue with decisions like Dudgeon, an Article 8 decision that found the criminalisation of homosexuality in the UK incompatible with human rights, or Z v UK, which imposed a more stringent duty on local authorities to protect children known to be at risk of abuse, is left unsaid.

The crux of Sumption’s objection comes down to the fact that the decision is made by a foreign court and that its decisions touch on political, rather than purely legal, terrain. It is trite to say that we signed up to the ECHR and that British lawyers helped draft it with British legal principles in mind. Such responses are valid, but they do does not rebut Sumption’s broader criticisms. The inadequacies within these objections are better seen through his flawed conception of democracy, which has never risen above brute majoritarianism. First discussed in his BBC Reith Lectures, then Sumption complained about the ECtHR leaping onto political terrain. There was little recognition that in any democracy, the rule of law must regulate the limits of political power. This essay is a rehash of the same flawed philosophy, with Sumption complaining that the ECtHR’s ‘approach… is completely inconsistent with any kind of democratic decision-making’.

Instead of the Convention and its court giving the people the rights that they want, it forces them to accept rights ‘for which there may be no democratic mandate’. We are left guessing about what form such popular rights may take.

Instead of the ECtHR, Sumption thinks that we should look to the common law, a fundamental bill of rights, and/or domestic courts to resolve questions of fundamental rights. In short, he wants questions of rights to be decided closer to home. Here, he is correct to say that we do not need the ECHR in order to properly protect human rights in the UK, although this is a particularly parochial perspective. UK judges are perfectly up to the task of recognising and upholding fundamental rights. (Although in recent years, the UK courts have shown marked deference to parliament, while the jurisprudence of the ECtHR shows that on many questions, it is more vigorous in challenging legislative and executive majoritarianism). Leaving the ECHR might encourage our judges to scrutinise the actions of the elected branches with more rigour, but at the risk of Britain’s politicians being able to run rampant over the rights of minorities and other vulnerable groups. Sumption, a white man who was once Britain’s highest earning barrister, might be willing to take this risk. The people who the Convention was enacted to protect might be less so.

Sumption claims to be a ‘responsible critic’ who would not want to ‘do away’ with fundamental rights. This is apparently is something that ‘no one’ is suggesting. It is impossible to read such a conclusion – and the broader essay – without coming to the view that Sumption has spent the last decade averting his gaze from every newspaper and every headline. Nothing in this paean to electoral democracy acknowledges the government’s assault on refugees, the denuded benefits system, the parlous state of prisons, or otherwise recognises that the Conservative government with its gargantuan parliamentary majority has done undeniable and egregious damage to every part of British life since it came to power in 2010. Britain is less wealthy, less healthy, and less democratic than it was when Cameron and Osborne first rode in on austerity.

Essays like this from ostensibly respectable and erudite figures are manna to the incompetents squatting in Downing Street. Rishi Sunak is telling journalists at the Conservative Party Conference that the voters ‘don’t want’ a general election while he scratches a line through Britain’s biggest infrastructure project since the Channel Tunnel in the face of popular opinion, while other members of the Cabinet are making up Labour policy pledges about ‘meat taxes’. Even Liz Truss is somehow clawing her way back to influence among the right-wing faithful. Any responsible figure with a public profile should be doing their level best to ensure liars and charlatans like this are kept out of power, not handing them ammunition to arm their deceit. Even if Sumption is willing to be a dupe for such a democratic delusion, he should keep it to himself. Not help the government drag the rest of the country down with him

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