Wise Judge-ment

ECtHR

Like the proverbial London buses, you wait for one senior judge to say something about the European Court of Human Rights, and along come two more. Hard on the heels of Lord Justice Laws’ call for our courts to stop deferring to the ECtHR, and Supreme Court Justice Lord Sumption’s view that the Court “undermines the democratic process”, comes a bombshell from no less a figure than the former Lord Chief Justice, Lord Judge.

Lord Judge doesn’t just say that “the Strasbourg Court is not superior to our Supreme Court.” He doesn’t just say that, while the ECtHR “has never been granted the kind of authority granted to the Supreme Court in the United States of America” and is “not in any sense a Supreme Court of Europe”, nevertheless “by using the concept of a ‘living instrument’, the Court appears to be assuming, or seeking to assume the same mantle. He also says that his “personal belief is that sovereignty on these issues should not be exported, and we should beware of the danger of even an indirect importation of the slightest obligation on Parliament to comply with the orders and directions of any court, let alone a foreign court.”

It’s hard to overstate the significance of this intervention. Just as the Government considers what our future relationship with the ECtHR should be, with proposals expected in the New Year, the man who was until a few months ago England and Wales’ most senior judge suggests that Parliament should not accept the direction of the Court.

I set out a year ago why I believe that we can no longer tolerate the writ of the ECtHR. This isn’t the same as saying that we should resile from the Convention. Typically, when debating these issues with me on the Today programme this morning (1:51:58 in), the Matrix Chambers lawyer Hugh Tomlinson QC immediately resorted to traducing the views of anyone who expresses scepticism about the Court’s behaviour as “anti European”. With the intervention of senior judicial figures, defenders of the human rights status quo are going to have to do a lot better than make cheap arguments like this.

Sumption and Laws in particular challenge the notion that a human rights court is properly equipped to make judgements on issues that are essentially political. Laws says that the historic role of human rights law is to protect fundamental values; “It is not to make marginal choices about issues upon which reasonable, humane and informed people may readily disagree …. Fundamental values possess at the very least an irreducible minimum. But short of that, the balance to be struck between policy and rights, between the judiciary and government, is surely a matter for national constitutions.”

Sumption says the same thing: “The moment that one moves beyond cases of real oppression and beyond the truly fundamental, one leaves the realm of consensus behind and enters that of legitimate political debate where issues ought to be resolved politically.”

As Lord Judge says, ultimately the question of whether a foreign court should be allowed to oblige Parliament to implement its judgements is “a political, not a judicial, question.” It’s open to Parliament to assert its sovereignty and decide that we need a new set of arrangements to protect human rights in our own country. Once, this seemed a lonely cause. Not any more.

3 thoughts on “Wise Judge-ment

  1. Dan Bunting

    I agree it is significant and hopefully it will lead to a proper discussion about rights and constitutions. Someone more conspiracy-minded than myself might express surprise that so many judges have piled in in one week, but it is probably just a coincidence.

    My view is that Sumption and Judge are wrong in what they say. It is also impossible to delineate what is a question of ‘politics’ and what is ‘law’ and to pretend to do so is naive in my view (more details of that and other thoughts on Sumption’s speech here – http://wp.me/p2ctNi-nW).

    I, for one, am more than happy in having rights and there are none in the ECHR that I think we could dispense with. The reason why a ‘foreign’ court (the ECHR isn’t really foreign, more trans-national with British representatives) makes these decisions is because the UK Judges are not able (or don’t feel able) to do so. We have created and exported the idea of rights throughout the world, maybe it’s time to actually ‘bring them home’? Until the House of Commons is willing to give up their total supremacy (in the sense of the supremacy of Parliament), then I’ll stick with the ECHR thank you – I’d rather trade a few judgments I disagree with for the knowledge that there is a check on the government of the day ramming yet more law through the Commons on a whipped vote.

    And as for democratic legitimacy? I can’t elect my head of state or anyone to represent me in the second chamber. In my lifetime I have been able to vote in precisely one referendum (on AV) and until the coalition, Governments have done what they please despite receiving 35-45% of the popular vote. The ECHR’s democratic deficit looks a lot less when set against that.

    Let us sort that (and an embedded Bill of Rights out) before moving against the ECHR. One last point – the Judges of the ECHR are elected, unlike almost all of ours. Curious then that they are most under attack for being undemocratic.

    Reply
  2. Robert Kaye

    ” It is also impossible to delineate what is a question of ‘politics’ and what is ‘law’ and to pretend to do so is naive in my view”

    If that’s the case, it’s all the more important that where there is doubt over whether an issue is one of law or politics, the unelected judiciary should defer to the elected. Otherwise the domain of law is potentially limitless and the scope for democracy increasingly circumscribed.

    “I, for one, am more than happy in having rights and there are none in the ECHR that I think we could dispense with.”

    I wouldn’t disagree. We’ve been signatories to the Convention for over sixty years and yet it is only in recent years that we’ve had a problem. Part of the issue is that the Court – abusing its ‘living instrument’ doctrine – is trying to create new rights that aren’t in the Convention (something which British judges would throw out under the bootstraps principle if an authority here tried it). For instance, the right to vote was considered but very deliberately left out by the framers. Yet the Court created it out of a deliberately more restricted duty to hold free and fair elections. And then this year in Vintner they talked of a right to hope – try finding that in the Convention.

    “The reason why a ‘foreign’ court (the ECHR isn’t really foreign, more trans-national with British representatives) makes these decisions is because the UK Judges are not able (or don’t feel able) to do so.”

    I don’t agree. With the Human Rights Act we have given the Courts the ability to find against domestic law – not a strikedown power, but they can rule it is incompatible with the Convention. And they have shown themselves willing to use it. The problem Judge highlights is that although we have a Supreme Court, our domestic courts have – unnecessarily in my view – fettered their discretion by misinterpreting the duty to have regard to Strasbourg as a duty to follow in all but exceptional circumstances. That’s the big restriction on British courts.

    “Until the House of Commons is willing to give up their total supremacy (in the sense of the supremacy of Parliament), then I’ll stick with the ECHR thank you – I’d rather trade a few judgments I disagree with for the knowledge that there is a check on the government of the day ramming yet more law through the Commons on a whipped vote.”

    Give up their supremacy in favour of what and to whom? Despite its flaws, the Commons is elected and accountable. Now, if you’re suggesting it should give up supremacy in favour of more direct democracy, I would have practical objections but wouldn’t disagree on principle. But are you instead suggesting that it should give up supremacy in favour of more power or unelected judges or commissars? By the way, all the evidence shows that voting in the Commons has been becoming less and less partisan over the last forty years. You’re repeating mantras which were already out of date in 88.

    “And as for democratic legitimacy? I can’t elect my head of state or anyone to represent me in the second chamber.”

    But as you note above, the Commons is supreme. I would prefer an elected House of Lords, but if your concern is the government of the day ramming law through Parliament on a whipped vote, that is more likely with yet another group of professional politicians.

    “In my lifetime I have been able to vote in precisely one referendum (on AV) and until the coalition, Governments have done what they please despite receiving 35-45% of the popular vote. The ECHR’s democratic deficit looks a lot less when set against that.”

    The Coalition got 62% of the popular vote. More than many European governments under PR. And more than any government coming out of a General Election since the Coalition of 1931.

    “Let us sort that (and an embedded Bill of Rights out) before moving against the ECHR. One last point – the Judges of the ECHR are elected, unlike almost all of ours. Curious then that they are most under attack for being undemocratic.”

    Yes, its interesting that they’re elected. So our MPs don’t get to choose the British representative at Strasbourg. But Hungarian fascists and Italian communists do. If there’s ever a clash of legitimacy between our House of Commons and the Parliamentary Assembly of the Council of Europe (itself unelected, and often used as a sinecure) then it’s Westminster for me every time.

    Reply
  3. Pingback: Rights and wrongs | Nick Herbert MP's Blog

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