International human rights are at the core of Jonathan Sumption’s third Reith Lecture where he takes aim at the European Court of Human Rights (ECtHR) sitting at Strasbourg. You can read earlier articles in this series: here and here.
Similar to his lament over our domestic courts’ tendency to usurp the political process, Sumption regrets the expansionist line which the ECtHR has taken, concluding that we either need to put a straitjacket around the justices’ range of decision-making, or leave the European Convention of Human Rights (ECHR) in its entirety. He argues that many of the rights now created by the ECtHR are merely ‘good ideas’, and that it is anti-democratic to have them arbitrated upon by international courts, rather than domestic legislatures.
In his first two lectures, Sumption was uncomfortable with the courts’ interpretation of their powers, where they ignore the ‘clear meaning’ of statutes in favour of an interpretation that gives the judges more control. Here, he progresses beyond any concern he may have with the procedure by which courts make their decisions, and focuses on the content of the decisions. He condemns the Strasbourg court for having changed the ECHR into a ‘dynamic treaty’, that ensures the treaty reflects the Court’s ‘own view of what additional rights a modern democracy ought to have’. This mission creep means that the rights which the court is now protecting are simply, in Sumption’s view, ‘not in the treaty’.
Sumption’s complaint is reminiscent of a long-standing debate in America. There, the argument is centred around the holy writ of the American Constitution, and whether the courts should prefer an originalist interpretation, based on what they think the Founding Fathers meant at the time the Constitution was written, or whether they should prefer a ‘dynamic’ or ‘living tree’ interpretation. This interpretation acknowledges that our conception of rights change as society develops, and that the courts need to protect them as they are understood now, rather than as they were when first written down, be that in 1787 or 1953.
The inanity of the originalist argument can be clearly seen through American gun laws. The American Constitution was written at a time when there was no professional police force, no organised military, and America’s vast swathes of terrain were uninhabited and untamed. The drafters of the Constitution therefore felt it necessary for there to be a right to own a gun; and it was written in. Since then, America’s wilderness has been tamed and American states have arguably the most powerful (and heavily armed) police forces in the world. This means that the need for citizens to wander around cities with a gun is at best unnecessary, and in reality, counterproductive.
However, the Congress of the United States has been unwilling to amend the Constitution, and the US Supreme Court has been unable to find a majority that will impose firm controls on gun ownership, as many of the justices have favoured an originalist reading of the text. This has meant that America has been unable to impose order on its gun laws, and, in what may be a related fact, also has the highest gun crimes rates in the Western world, all despite the fact that the original basis for the right is manifestly obsolete.
Although the dichotomy is less severe in the case of the ECHR, as it was written in 1953, there is little doubt that our conception of rights has changed dramatically since then. In particular, the expanding reach of the state surveillance and infrastructure means that the state can exercise significantly more control over our private lives than it previously could. Glancing at China’s creation of a surveillance super-state demonstrates how far a state unconcerned with the privacy
of its citizens can now intrude; meanwhile the decisions of our domestic courts and the ECtHR have shown how important courts can be in stopping an expansionist, power-hungry executive, gifted with new technologies and powers.
The privacy of citizens is Sumption’s bête noire in this lecture. Under the ECHR, a citizen’s right to a ‘private and family life’ is protected through Article 8. What was originally intended ‘as a protection against the surveillance state in totalitarian regimes’ has now, in Sumption’s view, become a right that ‘covers anything that intrudes into a person’s autonomy unless the Court considers it to be justified’, providing a long list of topics which he clearly thinks evinces the Inspector Gadget-like reach of the ECtHR’s decisions. This list is rhetorically effective, but worryingly shallow, with any decision, if reduced to a catchphrase like ‘eviction for non-payment of rent’ able to be made to seem ludicrous.
Sumption objects to this expansion on the basis that it allows the courts to become quasi-legislators, making decisions on ‘what is necessary in a democratic society’. As the courts were expressly given the authority to decide what is ‘necessary’, to claim that they have extended their role beyond what the drafters intended is a curious argument. The ‘living instrument’ theory of interpretation was well founded by 1950, and if the drafters had intended to limit the courts’ use of such a theory, they could expressly have done so.
To suggest that the courts have become legislators also ignores the fairly blatant limitation on their powers, which is that both our domestic courts and the ECtHR have little ability to actually enforce their decisions. The Human Rights Act, through its declarations of incompatibility, means that the UK courts can tell parliament they think the legislation is unlawful. But it does not impose an obligation on parliament to change it. Parliament often does, but Sumption demeans the legislature if he thinks it does so unthinkingly. In Nicklinson, a decision of the Supreme Court on euthanasia, he condemns the willingness of his judicial colleagues to label the law incompatible with human rights, ignoring the fact that such a label is in reality, little more than a prod to parliament to do what the court thinks is the right thing.
Compared to other democracies, the powers of the UK and European courts are relatively paltry. In the Supreme Courts of America, Canada and Israel, to name but three, the courts strike down legislative decisions, yet no one would claim that they are mere juristocracies, rather than democracies. David Runciman’s current series, Rethinking Representation, also being broadcast on Radio 4, is exploring the subtlety of what democracy means, and in so doing, exposes just how thin the majoritarian conception of democracy Sumption presents here is.
For a leading judge to claim that we should leave the European Convention of Human Rights, making the UK look like a petulant child who didn’t get to eat all the cake at his birthday party, is unfortunate, to put it mildly. Whilst there is little doubt that the domestic judges would step into breach, and there would be little diminution in the UK’s protection of human rights, such a response is tragically insular, ignoring the weight that the UK carries on the international plane. If we leave, what does that say to Russia, or Hungary? They will be able to leave with impunity, pointing out that if the ECHR is wrong for Britain, who is to say it is not also wrong for them?
This is not to say that there are legitimate criticisms to be made of Strasbourg and its decision-making. Unquestionably, it has expanded its reach, and on occasion, intervenes where it may be better to be restrained. But Lord Sumption’s argument is a blunderbuss, scattering bullets at unintended targets. For such an influential figure to make such a populist argument at a time when we are watching potential future prime ministers consider tyrannical ways of bending the nation to their will (such as proroguing parliament without its consent) is particularly reckless.