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In a lecture delivered on the 20th of November, Lord Sumption, the United Kingdom Supreme Court judge, mounted a direct attack on the legitimacy of the European Court of Human Rights. The Strasbourg Court, he claimed, makes new law by continuously expanding the scope of the rights protected under the European Convention on Human Rights (ECHR). In doing so, Strasbourg treads on matters of policy that are not for unelected judges, let alone international judges, to decide.
Any law student who has studied constitutional law or jurisprudence will immediately recognize the age-old questions that Lord Sumption’s critique raises. Do judges make or discover law? Are drafters’ intentions relevant in interpreting legal texts? Is judicial review undemocratic? Can the meaning of fundamental rights change over time? Such questions concern fundamental political issues in any liberal democracy, issues about which reasonable people disagree. They are issues that have received extensive philosophical treatment by constitutional scholars around the world, particularly in countries, like the USA, in which judges have long exercised the power to review the compatibility of legislation with abstract constitutional rights. But this power of review is quite new for the judges in the UK most of whom have been schooled in the archaic doctrine of Parliamentary sovereignty. The power was formally introduced with the Human Rights Act 1998, which incorporated the ECHR into domestic law. Within a decade, old questions about the nature of fundamental rights and the role of judicial review came to the forefront of British law and politics.
So Lord Sumption’s questions are not new. But are there any new arguments? Lord Sumption rose to prominence by being appointed to the Supreme Court directly from the practicing bar in 2012. He was educated at Eton College and his first degree, from Oxford University, was not in law but in history. In his speech, he makes three arguments in support of his claim that Strasbourg acts illegitimately. The first is that the Strasbourg Court, by interpreting the ECHR as a living-instrument, recognizes rights which states did not intend to grant, contrary to legally binding norms of interpretation found, amongst other sources, in the Vienna Convention on the Law of Treaties. The second is that the value of certainty requires strict construction of legal texts. The third is that the Strasbourg Court decides matters of policy that should be decided by democratically elected branches of government. Now, is there any merit in these arguments?
The view that judges should not overstep the boundaries of their jurisdiction and decide matters of policy is common ground in any debate about judicial review. Neither the Strasbourg Court nor its supporters believe that its approach to interpretation should exceed the bounds of law and lead to an abuse of judicial power. They are not cynics who knowingly flout the law as part of some anti-democratic international conspiracy. Rather, the Court holds – honestly and reasonably- a particular conception of what the EHCR rights, qua legal rights, are. It is a conception of human rights, according to which the scope of ECHR provisions may evolve over time in order to account for new or previously neglected threats to individual freedom (the ‘living instrument’ approach). It is also a conception of rights with which Lord Sumption happens to disagree. But precisely because both the Strasbourg Court and its critics agree that judges must not decide matters of policy, the allegation of Lord Sumption that Strasbourg’s ‘living instrument’ approach exceeds the bounds of law needs a further argument. Without an argument, it is question-begging; it assumes what needs to be shown. So what is the argument for why the 800 million people who live in Europe today have no legal rights against new or previously neglected threats to their human rights?
Lord Sumption appeals to drafters’ intentions, the text of the Convention and the Vienna Convention on the Law of Treaties. But his opponents can equally appeal to all these in order to support their competing conception of the ECHR rights. Didn’t the drafters of the ECHR have the abstract intention to protect whatever human rights people indeed have, as opposed to the human rights that they, in 1950, believed exist? If the aim of human rights treaties is to protect what human rights people indeed have, based on the best available argument on the day, then isn’t Strasbourg’s ‘living-instrument’ approach compatible with the rules of interpretation of the Vienna Convention on the Law of Treaties which prioritizes the object and purpose of treaties?
And then there is the text. Lord Sumption finds that the expansion of the scope of the ECHR to illegitimate children, criminal sentencing, immigration, extradition, homosexuality, abortion, assisted-suicide was “not warranted by the express language of the Convention”. Now, I read again the text of article 8 ECHR and it says ‘Everyone has the right to respect for his private and family life”. It does not say that everyone has a right to respect for his private and family life except homosexuals, illegitimate children, criminals, immigrants, pregnant women or terminally ill patients. One can return the textualist argument to Lord Sumption: doesn’t ‘everyone’ mean everyone? No amount of strict textual construction, however ingenious, could block considering the new human rights claims of these vulnerable groups. To be sure, there may be other reasons why such claims should be thrown out. But solely appealing to the abstract language of a bill of rights, or to the specific (as opposed to the abstract) intentions of drafters, never made a good legal argument.
Lord Sumption does offer one argument in support of his claims that his opponents must reject. He appeals to the value of certainty, which, he rightly notes, is very important in law. His opponents cannot rely on it because the idea that the ECHR is a living instrument often comes with a degree of surprise: the Strasbourg Court may recognize as a human rights issue something that some or most states never expected. But is the legal value of certainty paramount? We think that it is paramount only in some areas of law, such as criminal law, where it is unfair to defeat the expectations of individuals about when the state will use its coercive force: nullum crimen et nulla poene sine lege certa. But no individual’s life plans are upset when the Strasbourg Court unexpectedly upholds new human rights claims, such as trafficking or prisoners’ rights. The only one who might be surprised and adversely affected by such holdings is the state which is held responsible for the human rights violation. And the value of certainty is meant to protect individuals from arbitrary interference by the state, not to protect the state from being scrutinized about its intrusion on individual rights. So the value of certainty, important as it may be, cannot carry the weight of a conclusive attack on the living instrument approach.
The above objections to Lord Sumption’s claims are not new. I, and many others, have made them in scholarly publications with a view to sharpen and improve the quality of the debate about the best understanding of the role of human rights and judicial review in a liberal democracy. Judges should of course take part in this debate. But they are required to do so by developing normative theories of the legal values in question (i.e. democracy and human rights) and by engaging, in good-faith with well-known legal and philosophical arguments made on the other side. No one is exempt from this requirement, just because she is a judge or just because she thinks that the debate is ‘political’. ‘Political’ does not mean devoid of argument.
We all hold the values of democracy and human rights dear and we all agree that judges, in promoting these values, must not usurp the functions of parliament. Lord Sumption’s attack on the Strasbourg Court was based on question-begging arguments that failed to address the substance of the issues involved. It was a piece of empty political rhetoric, which does not help to promote the kind of dialogue about democracy and human rights that a mature liberal democracy, like the United Kingdom, needs.
George Letsas is the Co-Director of the UCL Institute for Human Rights and a Reader in the Philosophy of Law and Human Rights at University College London.