Former supreme court judge Jonathan Sumption recently wrote a piece for the Spectator entitled, somewhat dramatically, “Judgment call: the case for leaving the ECHR”. In the piece, Sumption makes a series of points concerning the European Convention on Human Rights (ECHR) and the European Court of Human Rights (ECtHR), which warrant further scrutiny.
At the outset of the article, Sumption appears to discount the necessity of the Convention claiming “Many of the rights which the convention proclaims were part of British law long before the convention was conceived”. This could be referred to as the “teaching grandmother to suck eggs” argument. Yet the notion that the UK had comparable rights protection in the common law to what is contained in the European Convention on Human Rights has been repeatedly debunked. Perhaps most notably in an excoriating article by Conor Geary in 2015 in which he observes that an array of cases were brought to Strasbourg against the UK which “went unnoticed by the common law’s supposed celebration of individual rights”. These included the maltreatment of homosexuals purely on account of their sexual orientation (Dudgeon v UK); corporal punishment in schools (Tyrer v UK); the inhuman and degrading treatment of internees (Ireland v UK); the deliberate shooting of suspected terrorists (countless examples notably McCann v UK) and Gearty’s list continues for some time after this. History has shown us time and again that significant blindspots exist within the UK’s legal system, neither addressed by common law rights protections nor, apparently, of concern to the vaunted democratic institutions of this state Sumption claims as the champions of rights protection.
Sumption goes on to make the “anything you can do, I can do better” argument, claiming that “[t]here is nothing in it that we cannot enact by ordinary domestic legislation”. In terms of content, this is undoubtedly true, but the European Convention on Human Rights is not a monolith. It is accompanied by institutional architecture – a supra-national court, a committee of ministers to supervise the enforcement of judgments. This external source of oversight cannot be recreated and sure enough this institutional architecture then falls within Sumption’s sights.
We then hear the plaintive cry of the oppressed, white, oxford-educated, old boy “We can have whatever rights we want if there is a sufficient democratic mandate for them. The real purpose of the convention is to make us accept rights which we may not want and for which there may be no democratic mandate”.
One would expect someone of Sumption’s experience to be acutely aware of the counter-majoritarian dilemma and yet… The purpose of rights protection through instruments like the European Convention on Human Rights is to protect minorities, and ultimately the rights of all (as you never know if you might end up being ‘the minority’ on a particular issue). Minorities who may lack the necessary political power in democratic institutions to properly ensure their needs are considered or acted upon. To protect them from the majorities who have political power and may use it to discriminate against them and mistreat them as we have seen countless times throughout history. A certain series of events in 1940s prompted the creation of European Convention precisely so that we would collate and codify the values and rights considered necessary to counteract the tyranny of the majority. This was the genesis of the European Convention and its salience in protecting minorities continues to this day.
Sumption goes on to claim that no one is suggesting getting rid of rights altogether stating “a domestic code of basic rights […] would look very like it”. This is a strange argument to make, following hot on the heels of the assertion of virtues of the common law. Either, as Sumption argues, the common law guaranteed sufficient rights protection, meaning a similar domestic code should not be necessary, or such a code is needed, in which case his original point is debunked.
Sumption then goes on to outline some of his beefs with the European Court of Human Rights. Foremost among them, the bête noire of British conservatives – extra-territorial jurisdiction.
Sumption claims “The first Article of the convention limits its scope to the territorial jurisdictions of state parties”. For someone who claims the European Court of Human Rights has deviated substantially from its core script, perhaps Sumption should himself pay more attention to it because nowhere in Article 1 is the word territory mentioned. Article 1 states
“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”
The word territory, or the specific linkage of rights protection to territory, is not mentioned anywhere in Article 1. It is true that the jurisdiction of high contracting parties is primarily territorial, but, and this is the crucial point, it is not exclusively so. Because states act outside their territory all of the time and to the extent that they do, their jurisdiction is also potentially engaged.
Sumption goes on to contend that “in 2011 the court suddenly reversed its own previous decisions on the point and claimed jurisdiction over British military operations overseas in places such as Iraq and Afghanistan”. The idea that the Court “reversed its own previous decisions” on so-called extra-territorial jurisdiction here is completely inaccurate. As I discuss at length in my book, the ECHR has been applied extra-territorially since 1965 (X v FRG) and extra-territorially to military operations since 1975 (Cyprus v Turkey). It is also worth noting that through the HRA parliament incorporated a Convention into domestic law in 1998 that was already being applied extra-territorially to the actions of military personnel during conflicts. Whether the UK thought through the consequences of its incorporation prior to various military excursions in Afghanistan or Iraq is a separate issue, but the proverbial stable door was already open when the stable was bought and paid for.
Sumption then raises his second beef with the ECtHR, that the court “has claimed the right to impose binding interim orders on state parties before the arguments have even been heard”. There is something of a clue in the title “interim measures” that is being overlooked here. They are applicable in the interim, pending the full hearing of a case. These work in a similar way to interlocutory injunctions to preserve the status quo between the parties pending a hearing. This is a functional necessity of court systems throughout the world and in the case of the ECtHR is only used in circumstances where an individual faces a serious risk of irreparable harm and typically removal from the jurisdiction of the court. In these circumstances, the court has justifiably taken the view that the applicant’s ability to communicate with their lawyers and pursue their case before the Strasbourg court would be compromised and it potentially gives rise to a violation of their right to individual petition, a right which the UK voluntarily agreed to.
Sumption then redirects his ire toward the living instrument doctrine, presenting this as the court claiming “the right to develop the convention by recognising new rights thought to be in the spirit of the original treaty although never envisaged in it”. It is worth pointing out at this stage that when the ECHR was first drafted, marital rape was not a criminal offence, homosexuality was illegal and corporal punishment of children was not only legal, but widely condoned. If the ECtHR were to adopt an originalist interpretation of the Convention and apply standards from the 1950s to the UK today, it would be considered abhorrent. The living instrument doctrine is not about making up new rights, but applying rights in the convention to current circumstances so that they are relevant to people’s lives and offer practical and effective protection to them.
Toward the end of the piece, Sumption begins to rail against the European Court over-stepping its legitimate boundaries claiming “It has become a template against which to assess most aspects of the ordinary domestic legal order on principles which are highly contentious and far from fundamental”. Yet this notion of Strasbourg constantly meddling in the domestic affairs of the UK is not borne out by any objective reality. A tiny number of cases are heard by Strasbourg concerning the UK and even fewer violations are found in practice. The idea that Strasbourg is constantly interfering in the domestic affairs of the UK is fanciful at best.
He also refers to the ECtHR “arrogating to itself the right to decide between competing public interests, and to determine what is necessary in a democratic society, irrespective of the views of democratic electorates”. Here Sumption completely overlooks the application of the principle of subsidiarity within the court’s jurisprudence. This principle has grown in significance to a point where a former president of the court has described the work of the court as being in an “age of subsidiarity”. The principle dictates that it is up to states to decide on the measures necessary to secure Convention rights within their own jurisdictions. The Court has also been known to heavily rely on the so-called “margin of appreciation” principle [an invention of the court that Sumption presumably supports] through which the court moderates its review of these specific issues. Sumption wrongly accuses the court of passing judgments with “very little regard to their different histories, moral and religious values, or legal and political traditions”. The Court is more often than not acutely aware of these issues. As it stated in Kudla v Poland (and innumerable other cases)
“it is also important to emphasise the fundamentally subsidiary role of the Convention mechanism. The national authorities have direct democratic legitimation and are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions. In matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker should be given special weight.”
The European Court of Human Rights wants states to protect rights themselves, it doesn’t want to be involved if it can be avoided.
Finally, Sumption decries the involvement of the European court in matters “better left” to democratic institutions in the UK. Yet, there remain genuine questions over how “representative” the UK’s democracy really is. The first past the post system confers power on large parties which have, more often than not, less than 50% of the votes of their constituency. The Westminster government frequently rides roughshod over the democratic will of the devolved parliaments on issues ranging from children’s rights to recycling schemes. The vaunted democratic institutions of the State seem more concerned with cutting inheritance tax for the wealthiest people in the country, than addressing the countless injustices meted out in the crumbling justice system of this state on a daily basis. Perhaps Sumption should cast a more critical eye over the democratic institutions of the state and their capacity to respond to the needs of the people before looking elsewhere for the targets of his ire.
Ultimately, Sumption overlooks one key point, which is that the Convention is itself a product of debate and discussion. It can be changed and has been changed many times throughout its lifetime, it simply requires the agreement of the other parties to the Convention. Rather than throwing the toys out of the pram, engaging with other states to address any issues that the UK has with the court and the convention system is a possibility. If the problems are as egregious and disturbing as Sumption makes out, presumably they will be favourably heard by the many democratic States of the Council of Europe. If on the other hand Sumption’s case is misleading, or perhaps over-stated, the UK may find it more difficult to convince the leaders of a host of democratic liberal democracies, and their electorates, that it is a good idea to change. After all, democracy can be a tricky business and perhaps it’s easier to convince the readership of the Spectator of your views in a vacuum of objective reality than it is the leaders of other democratic nations. Some, it appears, still live on fantasy island.
Stuart Wallace.
Stuart Wallace is an Associate Professor at the University of Leeds where he teaches constitutional law and international human rights law. He is a contributing writer for the Constitution Society.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.