Cyclefree gives her view

Jonathan Sumption, former Law Lord, eminent historian of the 100 Years’ War, once described by Alastair Campbell as the “cleverest man in Britain” with a “brain the size of a planet” has had a long and distinguished legal career, having previously been a fellow of Magdalen College, specialising in medieval history. Like many with high intelligence he can, however, be naive about others’ baser motives.

His Reith lectures raised important questions about the balance between law and politics, about the extent to which courts should intervene in political issues and whether activist courts risk undermining democratic norms. These are all legitimate issues to raise. There is – in any democracy subject to the rule of law – an inevitable and necessary tension between democratic demands and the necessity to ensure that countries do not breach the boundaries of broadly accepted norms of civilised behaviour, between democratic demands and the requirement to comply with the law. Would it, for instance, be acceptable for a government to execute every person espousing a named religion if it won election after espousing this in a manifesto? Or remove their right to vote? If the answer is no, then we accept that winning a democratic election is not the only constraint on a government’s power. Where those boundaries should be and how they should be decided are perennial political and legal debates.

Sumption has recently reiterated his concerns with what he describes as an unreformable activist foreign court in a Spectator article arguing for the UK’s departure from the ECHR. His reasons include:-

• British common law and politicians protected human rights long before the Convention. Britain does not need it to continue doing so. The Convention, in short, is unnecessary. This is incorrect – there have been any number of rights which British law and politics failed to protect until cases were reviewed by the Strasbourg court. Northern Ireland, for instance, remains the British legal and political establishment’s blind spot.
• A domestic code of rights would be an acceptable substitute for the Convention. This rather undermines the claim that the common law is all that is needed. 
• Human rights should only be enforced here if there is a democratic mandate for them. This ignores the dilemma posed if a majority votes for something wholly offensive to decency or to deny minorities basic rights. Majorities can create tyrannies, if not constrained.
• The Strasbourg court has adopted a “living instrument” doctrine enabling it to expand into areas never originally envisaged. It should stick to the Convention’s original intentions. This is very similar to the originalist doctrine adopted in the US. It is an odd approach for a lawyer steeped in the common law to adopt since the common law has developed precisely by adapting and developing and extending its remit based on principles extracted from previous case law. The trouble with an originalist approach is that it pickles the law on the basis of one historical moment; it builds in inflexibility and rigidity and ignores the reality of people’s needs and lives now. Why this should be a good thing for Europe to adopt is unclear, not least because the Convention has been amended and adapted as a result of political debate and discussion among the states which have signed up to it. 

There are plenty of other criticisms of his analysis to be made. Some of them are set out here.

But the real criticism to be made is this. Underlying Sumption’s proposal is a belief that:

(1) There is no need for foreigners to stick their noses in.

(2) British courts consisting of judges like him are best placed to rule on such rights and hold British governments to account.

He assumes that British governments will be happy with this latter statement.

How safe is this assumption? Since at least 2017 this government has been explicit in wanting to reduce its accountability, both to Parliament and the courts. Look at the way the judges ruling in the Miller case on how Brexit needed an Act of Parliament were attacked with the then Lord Chancellor (one Liz Truss) having to be dragged into defending judges’ independence, as she was legally and constitutionally obliged to do. Then there was the 2019 Tory manifesto with a lot of disingenuous guff about protecting democracy, repatriating human rights and making them more British, even though this had already happened in the 1998 Human Rights Act. Remember also Raab’s Bill of Rights Bill which would have limited and reduced citizens’ rights and their ability to enforce them against the government or otherwise hold it to account. The entire thrust of this government’s approach has been to reduce the power of the courts, to limit citizens’ rights, to make it easier for the executive to do what it wants without the tiresome bother of having to answer to Parliament, let alone the courts. 

Exiting the ECHR is the first step. It will not be the last. Sumption should understand that. He noted the way the government used Covid to give itself powers it did not need to avoid Parliamentary scrutiny. How safe would citizens’ rights be under such a government? Under any future government? (It was Labour which first took powers to deprive British citizens of their citizenship, then extended those powers.) It is easy to present this as an argument against a foreign court granting foreigners rights they should not – because they are foreign – be entitled to. (Is it unfair to summarise Ms Braverman’s thoughts on this topic thus?) But the reality is that once that is done, it is British courts, British judges and the rights of citizens here which will be attacked by governments impatient with any restrictions on their power. Neither the ECHR nor the Strasbourg Court are perfect. But those advocating departure would be wise to remember that those politicians attacking both may not be making good faith legal criticisms but simply using these as cover to seize more unrestricted powers for themselves. They should be wary, in Lenin’s wonderful phrase, of becoming their “useful idiots”.

Cyclefree