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.