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George Letsas: Lord Sumption’s Attack on Strasbourg: More Than Political Rhetoric?

a_letsasIn 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.

8 comments on “George Letsas: Lord Sumption’s Attack on Strasbourg: More Than Political Rhetoric?

  1. C.B
    December 9, 2013

    If I may add, another argument in favour or the ‘living instrument’ approach to the interpretation of the ECHR is that the Convention is, more or less, a response to the atrocities of the Nazi regime. Consequently, the drafter intended to avoid such occurrences from happening in the future and adopted wide and abstract wording for the rights that can accommodate the changing climate for human rights. Thus, by having ECHR as a ‘living instrument’ no new rights would need to be expressly adopted to avoid activities that may only to late be seen as outrageous.

  2. Timothy Lawrence
    December 10, 2013

    Lord Sumption would perhaps reply that a majority of state citizens might also be surprised and consider themselves adversely affected by at least some of the holdings you describe; but surely the intention of the Convention drafters was, and admirably, to safeguard minorities to an extent against state action including that which appeals to a majority and including a majority in Parliament.

  3. Claire Jervis
    December 13, 2013

    Lord Sumption attacks the Strasbourg court’s approach to its interpretation of the Convention as a ‘living instrument’ as an undemocratic and illegitimate threat to Parliamentary sovereignty.

    However, it is possible to read the Convention case law in another way – as being deferential to democracy, perhaps even too deferential (as regards the most sensitive and controversial moral issues). The living instrument approach, until recently at least, has referenced a consensus amongst contracting states before finding a violation of the right in question. In the absence of such consensus the court has tended to grant states a wide margin of appreciation – recognising both the subsidiary nature of the Convention and the fact that national authorities are often better placed than international judges to asses what limitations on rights are necessary in a democratic society. To characterise the court’s behaviour as undemocratic is therefore over simplistic.

    The prospect of judges making the law is unattractive to most people – even those who advocate a dynamic approach to the interpretation of the Convention. I, however, share George Letsas’ concerns (expressed elsewhere) about the notion that rights can be constrained by a consensus of what society thinks those rights should be. It is not that long ago that the prevailing view was that slavery was acceptable, that women who had children out of wedlock should be placed in servitude and that it was acceptable to inflict violence on children. There are many today that think homosexuality is a disease and that torture may be acceptable in some circumstances. What is popular is not always tolerant and it is certainly no guarantee that it will be liberal.

    To argue that because rights impose obligations on the state they require a measure of recognition by the community also ignores the fact that a key function of the Convention is to protect unpopular, marginalised interests; interests that the majority may never even have thought about. Human rights, by definition, limit sovereignty. In doing so they do not undermine democracy but are an integral part of the checks and balances that characterise that system.

    Perhaps Lord Sumption’s weakest attack on the legitimacy of the court’s approach, however, is his assertion that the language of the Convention does not support the recognition of the rights that have emerged as a result. As George Letsas points out, it is not necessary to distort the language of Article 8 in order to conclude that the question of maternal affiliation with illegitimate children, or the criminalisation of homosexual acts between consenting adults are matters which concern intimate and fundamental aspects of peoples’ private and family life. As for the assertion that prisoners are not an oppressed minority and so the question of whether they should have the right to vote is not fundamental – if we don’t recognise the right to vote as fundamental to democracy then where does that leave democracy?
    There are always examples of where the court might have erred in its assessment of whether a value merits recognition as a human right – but I would rather live in a society that grants too many rights than too few.

    Finally, the call for certainty. A coherent and consistent case law is essential to the legitimacy of any court. What Lord Sumption appears to desire though is certainty for states; to know the extent of their obligations. A desire for certainty by analogy with the need for certainty in criminal law however is misconceived. There, as George Letsas points out, the need for certainty is referenced by the needs of individuals to know when they might face liberty-restraining penalties. The same considerations do not apply to states. Again as George Letsas infers, for states to argue that they are entitled to know the limits of their power to interfere with the rights of their citizens is to misunderstand the relationship between the individual and the state.

    To conclude, perhaps the issue is not about whether the rights recognised by the court are valuable or important or even who should make such assessments. Instead maybe the point of disagreement is whether the adjudication of individual complaints is the appropriate mechanism for doing so. As Lord Sumption points out, human rights are what emerge after reasoned debate and negotiation in which all interests are represented. This conclusion may legitimately lead one to question not the authority of judges to do that – but whether the hearing of an individual complaint is the best forum for that debate. It is valid to recognise that one of the limitations faced by any court is that it is constrained by the facts before it. Furthermore, as Lord Sumption argues, a court is unable to access a wide range of representative interests when making its assessments. He validly points out that NGO’s have focussed agendas and represent a narrow range of interests while applicants have only their own interests in mind. Though valid, however, such concerns do not justify a wholesale rejection of the court as illegitimate. A more productive approach might be to consider whether the court ought to focus less on dispensing individual justice and more on tackling the most challenging and sensitive human rights issues. Perhaps some of the discomfort that critics of the court experience stems from a perceived lack of openness about what the court is actually doing. If we were to call a spade a spade could we dig ourselves out of our entrenched positions and have a meaningful dialogue about how best to protect our rights?

  4. Stephen Lea
    December 13, 2013

    If the Convention can only safeguard minorities to the extent that ‘majorities’ would allow those minorities to enjoy such safeguards, then individual human rights protected by the Convention do not attach to people equally, which is contrary to any textual reading of the Convention itself.

  5. Hasan Özdemir
    December 13, 2013

    Dear Jervis I don’t presume those can be able to separate from each other that “A more productive approach might be to consider whether the court ought to focus less on dispensing individual justice and more on tackling the most challenging and sensitive human rights issues”. As you mentioned a prevailing view or our viewpoint can be able to change in future.Therefore theory and practice is a whole. Mostly individual complaints is deemed to the change. However Protocol No. 16 targets on tackling the most challenging and sensitive human rights issues in future too. An essential problem that the Strasbourg Court hasn’t have an accountable and foreseeable audit system yet. Yes a democracy has to own checks and balances but an international court is also so.

  6. David Bentley
    December 16, 2013

    Lord Sumption is I’m sure more than capable of defending himself, even if handicapped by his schooling at Eton, and by an Oxford degree sadly ‘not in law but in history’. So here are just a few observations.

    First, ‘boo words’ (as well of course as ‘Eton’ and ‘Oxford’). Does calling the doctrine of parliamentary sovereignty ‘archaic’ advance George Letsas’s argument? Is Letsas’s usage intended to be descriptive or (horrible word) normative? Or perhaps both: it’s gone and good riddance! But when, and how, and really?

    In any case, to claim as he does that for instance giving prisoners the vote would affect no one else’s rights is to miss the point. I and no doubt many others firmly believe that the present position is the right one. There is no great human right involved here, simply the way our institutions are arranged. Most people in this country have the right to vote, you have only yourself to blame if your conduct results in your losing that right. Perhaps in Switzerland or Swaziland the rules are different – and from each other. So be it. But while I do not lose a human right, if the courts decide that the UK cannot continue with its arrangements, I have lost a political right, that Parliament should make the laws under which I consent to live.

    Indeed, if the UK is a ‘mature’ democracy, then its citizens should be prepared to decide (rightly or wrongly) matters for themselves, through representative institutions, not encouraged by academics to leave them to the judges. (And finally, has Lord Sumption changed his sex, or has he just become a victim of the deplorable practice of using ‘she’ where ‘he’ is still the common (surely not yet archaic?) usage?)

    David Bentley

  7. AD
    January 2, 2014

    Anyone reading this post should compare its sixth paragraph with what Sumption actually said about Article 8 (pages 7 and 8 of the transcript) and, specifically, consider whether Sumption actually said or can even be interpreted as saying that homosexuals etc should not have Article 8 rights.

  8. solajustitia
    January 18, 2015

    Lord Sumption’s, and those who subscribe to the same stance, take on textual interpretation–that such texts should be read in light of the circumstances at the time (originalism; or “drafters’ intention”)–is proper.

    Letsas writes:
    “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?”

    The objection there is problematic because it presupposes that human rights evolve over time. This area of metaphysics, or nature, of human rights law is still murky. If one subscribes to the view human rights are innately existing, thereby forming the basis for legal rights such as those contained in treaties and constitutional texts, then human rights as they existed in the 1950s exist as they do now–unchanged. If, on the other hand, one subscribes to the view that human rights exist merely because they are conferred by treaties and constitutional texts, then it is possible for “new” rights to emerge over time, and it would, thus, be plausible that the drafters’ intention were to protect rights that emerge in the future.

    Lord Sumption appears to subscribe to the former view.

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This entry was posted on December 9, 2013 by in Constitutional reform, Human rights and tagged , .

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