This is part of a series of posts in which Richard Ekins reflects upon Lord Sumption’s Reith Lectures. You can find the first post here.
In his third Reith lecture, broadcast yesterday and entitled “Human Rights and Wrongs”, Jonathan Sumption examines international human rights law, “the main battleground between law and politics”. His strategy is to consider the nature of rights before explaining what human rights law requires of judges and pointing out how this threatens democracy. It is a powerful argument, but may in the end understate the problems with human rights law.
The idea that there are inalienable rights which human beings enjoy by virtue of their humanity is an old one, as Sumption points out, noting Blackstone’s recognition of “natural rights”. The problem, he maintains, is that it is not easy to determine “which rights are inherent in our humanity, and why”. Sumption takes Hume to have refuted natural law and he concludes that rights “are the creation of law, which is a product of social organisation, and is therefore necessarily a matter of political choice.” I would say that this is true for human rights law, but not for human rights properly understood, which are moral standards to which law should answer and which the law should help secure and instantiate. Sumption goes on to say that the assertion that some rights are fundamental is “a personal moral judgment that some rights ought to exist because they are so fundamental to our values and so widely accepted as to be above legitimate political debate”. The assertion only works, he says, for rights that “are truly fundamental and generally accepted”, which he takes to mean “rights not to be arbitrarily detained, injured or killed” and “rights without which a community cannot function as a democracy”. Everything else is a matter of reasonable disagreement.
Even if rights attract consensus in the abstract, there will very often be reasonable disagreement about the detail – a point which applies also to the rights that Sumption says are fundamental. None of this entails or warrants wider scepticism about human rights or morality more generally; the Humean spirit of the early part of the lecture is misconceived. The vital question, I say, is how law should realise human rights, how it should secure justice. The classical natural law tradition, which Hume, and perhaps Sumption, rejects, recognises the moral need for law – for the exercise of lawmaking (legislative) authority to specify abstract moral principles, to address the detailed conditions of some time and place, and to avoid the need for recourse to controversial moral reasoning in determining legal duties and resolving disputes. The problem with modern human rights law is that it largely ignores these strictures, introducing into law abstract moral propositions that are not yet fit to be law. This inevitably invites and requires further (judicial) lawmaking, which, like any other positive law, may be unjust or mistaken. The promise of human rights law – that it will truly secure human rights – is illusory. Instead, human rights law is bastardised natural law, incompletely posited positive law.
The main body of the lecture addresses the architecture of human rights law. Sumption asserts that “the main source of human rights in Britain is [now] an international treaty, the European Convention on Human Rights”. He must mean the main source of human rights law, for the main protection for human rights in the UK continues to be the ordinary law of the land. In most cases, he says, “Parliament always has the last word on the contents of our law, even when it originates in a treaty”, but not in relation to a dynamic treaty, which “does not just say what our domestic law should be [but] also provides a supranational mechanism for altering and developing it in future.” The appeal of the ECHR to many lawyers and others, as Sumption notes, is thus that it establishes law and lawmakers above and beyond the reach of Parliament and the people. In this way, international human rights law aims to limit – and often succeeds in frustrating – democratic self-government.
The ECHR was not, Sumption asserts, intended to be a dynamic treaty. It “was conceived as a partial statement of rights universally regarded as fundamental”. Yet it has become a dynamic treaty, which is taken to invite and require judicial lawmaking. The European Court of Human Rights (ECtHR) has transformed the ECHR by conceiving of it as a “living instrument”, a conception that confirms Sumption’s analysis of the ECHR as now a (generative) source of law, which is inconsistent with the claim that it asserts truly fundamental rights. The Court’s Article 8 jurisprudence illustrates the problem, with the Court having introduced in effect a principle of personal autonomy, which is then used to regulate a bewildering array of legal domains. Sumption’s critique of this excess is rightly devastating as is his conclusion that the Strasbourg Court has unilaterally departed from what was agreed by the signatory states such that its case law “is, in reality, a form of non-consensual legislation”. International rights adjudication might be reasonable, Sumption suggests, if truly confined to terms agreed by signatory states, which aimed to identify a narrow, specific set of wrongs which no state should commit. That is now very far indeed from the practice of European human rights law.
How should the UK respond to the ECtHR’s usurpation of the ECHR? In response to questions, Sumption makes clear that he hopes for a change of heart on the part of judges, domestic and European, and sees some signs that this is underway, but concludes that if there is no significant change the UK should withdraw. In the lecture itself, he notes that Parliament authorised the ECtHR’s mode of lawmaking by enacting the Human Rights Act 1998 (HRA), a choice which should be condemned as undemocratic. I would say instead that Parliament in 1998 chose to tolerate such lawmaking and to give it effect in our domestic law. That choice was plainly significant for apart from the HRA the ECtHR’s judgments had no real purchase on our law. They bound the UK in international law, insofar as signatory states undertook to comply with judgments of the Court to which they were a party. Still, the ECtHR cannot enforce its judgments and it would be open to signatory states to maintain that if the Court brazenly departs from the agreed terms of the ECHR, this vitiates its obligation to conform to its judgments, which are outside its jurisdiction. Lord Mance outlined an argument to this effect, in relation to the Court of Justice of the EU, in Pham.
Interestingly, Sumption notes that “British courts could reject decisions of the Strasbourg court”, and occasionally do, which sometimes prompts Strasbourg to reverse course, but that “defiance is really not an option if Strasbourg persists”, for this “would put Britain in breach of international law, something which, by long-standing constitutional principle, the domestic courts should avoid if they possibly can”. I do not think there is any such free-standing principle, but there is a presumption that Parliament does not intend to place the UK in breach of international law and the HRA in particular aimed to minimise the UK being held in breach of the ECHR.
The HRA confers extraordinary power on the courts to quash secondary legislation and executive action, and to distort or denounce primary legislation, by reference to convention rights. Sumption’s concern is with the democratic propriety of this dispensation. I share his concern but would add that it also undermines the rule of law by making legal rules, or otherwise lawful executive actions, vulnerable to retrospective annulment by way of litigation that invites and requires judicial lawmaking, domestic or European. As Sumption notes, litigation about convention rights very often concerns whether some qualification on those rights is justified, which requires judges to decide: what is necessary in a democratic society; what purposes are legitimate; what prevention of crime, or public health, or economic well-being requires; or what constitutes a fair balance between individual and community. Thus, “intensely political questions” are relocated from the political process to the courtroom, which disempowers citizens and politicises litigation.
The problem is not just European judges. Discussing Nicklinson, he notes that five of the nine judges thought that ultimately it was for the courts rather than for Parliament to decide whether the Suicide Act 1961 was compatible with Article 8 of the ECHR. Sumption’s dissent, which his lecture recalls, is powerful and I certainly agree with his conclusion that the merits of changing the law, of legalising assisted suicide, are for Parliament rather than the courts. However, one might strengthen his argument, and disarm the critique that his dissent shirks the duty the HRA imposed on him and other judges, by noting that the majority’s openness to finding the Suicide Act incompatible with the ECHR turned on a willingness to go beyond Strasbourg, which the HRA itself, properly understood, does not permit. In the last decade or so, the HRA has been routinely misinterpreted in this way, with majorities in the Supreme Court choosing to impose their own understanding of convention rights, which is not required by and goes beyond ECtHR rulings. The courts have thus greatly widened the HRA’s scope, which warrants judicial retrenchment or legislative intervention.
The focus of the lecture is on the democratic legitimacy of judges determining the political questions that modern human rights adjudication invites. One should also question their competence to answer such questions at all well. In Nicklinson, Lady Hale and Lord Kerr were willing to denounce the Suicide Act and demand the legalisation of assisted suicide despite the matter not having been properly argued and despite the lack of assurance that it would be possible to protect the vulnerable. Their cavalier treatment of the relevant moral and practical questions, including the sanctity of life and the impact on the dignity of the disabled or elderly, stands in sharp contrast to the careful, wide-ranging and well-informed discussion that followed in both Houses of Parliament, a discussion that was not at all enriched by this litigation. One should simply reject Lady Hale’s assertion, in a later case (para ), that in relation to human rights, “courts may be thought better qualified [than the legislature], because they are able to weigh the evidence, the legal materials, and the arguments in a dispassionate manner, without the external pressures to which legislators may be subject”. Human rights litigation is a very poor means to make law or to inform lawmaking, apart from the narrow function of highlighting inconsistencies between ECtHR jurisprudence and domestic law, inconsistencies which may but need not lead Parliament to change the law.
Many will reject Sumption’s democratic critique on the grounds that human rights adjudication is democracy in action. This line of argument, Sumption notes, understands democracy as “a system of values” rather than as “a constitutional mechanism for arriving at collective decisions and accommodating dissent”. The problem, he says, is that this is just another in a long line of attempts to capture “a monopoly of legitimate political discourse, on the ground that its advocates considered themselves to be obviously right”. He has a point. Human rights law trades on the majesty of human rights, properly understood, to assert that we should be ruled by judicial interpolation of incompletely posited rights. This constitutional arrangement unjustly privileges the moral views of judges; it also departs from the morality of law, promising the rule of courts but not the rule of law.
Richard Ekins is Associate Professor, University of Oxford, Head of Policy Exchange’s Judicial Power Project, and editor (with N. W. Barber and P. Yowell) of Lord Sumption and the Limits of the Law (Hart Publishing, Oxford, 2016).