On 20th November 2013 Lord Sumption of the UK Supreme Court gave a lecture in Kuala Lumpur, entitled The Limits of the Law. It is well worth reading. The Supreme Court is rapidly developing into a full-scale constitutional court with enormous influence on life in the UK and in many other countries with a common-law tradition, including Malaysia, where its decisions command respect. When a member of that Court expounds his views about what Judges do and what they should be doing, anyone interested in law should pay close attention.
Sumption continues the theme of judicial parsimony he set out in his 2011 Mann Lecture, before his appointment to the Supreme Court. He believes that there is too much litigation in general, and in the field of public law and judicial review it has taken a wrong turning with excessive intervention in matters that are best left to others. ‘Parliamentary scrutiny’, he stated then, ‘is generally perfectly adequate for the purpose of protecting the public interest in the area of policy-making. It is also the only way of doing so that carries any democratic legitimacy.’ He envisages a clearly marked realm of policy into which judges must not trespass. Sir Stephen Sedley, whose absence from the Supreme Court is to be lamented, set about Sumption in the London Review of Books: also well worth reading. He criticised him for making assertions without evidence; misunderstanding the relationship between administration and judicial review in France, and misconstruing several major public law cases in the UK. Co-incidentally, one of the decisions that Sumption cited in 2011 in support of his view was the 1994 Pergau Dam case, which concern the construction of a dam in Malaysia: the Foreign Office wanted to use development funds for the dam, and would win export orders for British weapons in return. The High Court held that this use of the funds was outside its powers under the relevant statute, and was therefore unlawful. According to Sumption, this was an improper incursion into matters of policy; in Sedley’s view, it was the Court doing its proper job of construing a statute. (The Foreign Office chose not to appeal.)
In the Kuala Lumpur lecture, Sumption (wisely, no doubt) refrains from mentioning Pergau, but he repeats the French canard that occasioned the Sedleyan put-down, while maintaining the 2011 thesis. He now turns his big guns on the European Court of Human Rights for making a land-grab over matters far beyond the contemplation of the authors of the European Convention of Human Rights & Fundamental Freedoms, thereby upsetting the constitutional balance between Courts, Parliaments, and Executives in member states – particularly the UK. He criticises the Strasbourg doctrine of the ECHR as a ‘living instrument’:
…the Strasbourg court develops the Convention by a process of extrapolation or analogy, so as to reflect its own view of what rights are required in a modern democracy. This approach has transformed the Convention from the safeguard against despotism which was intended by its draftsmen, into a template for many aspects of the domestic legal order. It has involved the recognition of a large number of new rights which are not expressly to be found in the language of the treaty.
It is questionable whether the draftsmen intended their Convention to be treated like holy writ, frozen in time in 1950; but even if they did, Sumption gives no legal reason for later generations of judges to refuse to adapt its terms to changing circumstances. He skates over the important distinction between individual judgments, which may be questionable, and the principle of adaptability, which no one would question in relation to a domestic statute. For example, it would be absurd for me to defend a charge of ‘wanton and furious driving’ under s.35 of the Offences Against the Person Act 1861 (still in force) on the basis that I was driving a car, when the statute was intended for horse-drawn vehicles before cars existed. The provision is alive enough to apply to things ‘not expressly to be found in the language of’ the statute. The debate is as arid as that between American ‘originalists’ and their opponents over how to interpret the US constitution. The disagreement there, though couched in the language of law, masks the real, political dispute between conservatives and liberals within the judiciary, and beyond.
When Sumption says that Strasbourg acts ‘to reflect its own view of what rights are required in a modern democracy’, he insinuates that the judges are imposing their own views ex cathedra or from under the palm tree. In fact, the typical judgment will resemble that of a UK Court, by looking for authority for its reasoning in national law, European law, international treaties, and the previous decisions of national Courts as well as its own. A good example is Maslov v Austria, a leading case concerning the rights of a criminal facing deportation. The Court cited Austrian statutes, Recommendations of the Committee of Ministers of the Council of Europe, the UN Convention on the Rights of the Child (incorporated into Austrian law), EU Council Directive 2003/109/EC, decisions by the European Court, and decisions of its own. It then gave a reasoned judgment, based on these materials, on the criteria that national authorities should use when weighing up considerations for and against deportation, within the framework of Article 8 of the Convention. There is no hint of the palm tree.
Article 8, in Sumption’s view, is particularly problematic. He claims that it has been enlarged by Strasbourg in to include deportation among many other things, which are not ‘warranted by the express language of the Convention, nor in most cases are they necessary implications. They are commonly extensions of the text which rest on the sole authority of the judges of the court.’ He seriously misdescribes what the Court did in Maslov and how it reached its conclusions. The Judges relied on authorities well beyond their own sole authority. They behaved like the Supreme Court itself when it interprets relevant statutes and cases in order to reach its conclusions – which may change the law in an unforeseen way.
The only concrete example of this deplorable practice that Sumption gave in Kuala Lumpur is the prisoner voting-rights cases, Hirst v United Kingdom and Scoppola v Italy, neither of which relied on Article 8, but were brought under Article 3 of the 1st Protocol of the ECHR, (the right to free elections). In Hirst, the Court held by a majority that the UK’s blanket ban on all prisoners voting in elections was unlawful. It called on the UK to refine the ban. It reached its decision by reference to the Convention and an array of European, Canadian, and South African materials. Its process, as in Maslov, was readily recognisable to a common lawyer who demands authority and precedent for propositions of law. Now, whether the Court got it right is an open question; the fact that there were dissenting judgments indicates that the issues were unusually difficult to resolve. Sumption not only thinks the Court got it wrong, but they should never have considered the matter at all. But if legal instruments such as conventions and treaties incorporated into national law make a question justiciable, then a person cannot be blamed for asking the Courts to decide the question, and the Courts cannot be blamed for making decisions.
Sumption takes his complaint further: not only should Strasbourg not consider such matters, but in ruling on them it engenders a ‘democratic deficit’:
The treatment of the Convention by the European Court of Human Rights as a “living instrument” allows it to make new law in respects which are not foreshadowed by the language of the Convention and which Parliament would not necessarily have anticipated when it passed the Act. It is in practice incapable of being reversed by legislation, short of withdrawing from the Convention altogether. In reality, therefore, the Human Rights Act involves the transfer of part of an essentially legislative power to another body.
This is opaque. When Parliament passed the Human Rights Act it knew that Strasbourg treated the Convention as a living instrument; it could therefore have predicted that the law would continue to develop, as it had done before the Act. Parliament’s crystal ball was no better or worse than anyone else’s, even if its powers of scrutiny are ‘perfectly adequate. So no surprises there. Section 3(1) of the Act provides:
So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights (emphasis added).
That, I suggest, is a fairly modest aim. If a nation’s Parliament adopts a set of human rights principles on behalf of its citizens (which even the extra-judicial Sumption admits to finding ‘wholly admirable’), the least it can do it tell itself to stick to them ‘so far as it is possible to do so’. It did not sign up to them exactly as Strasbourg found them to be in October 2000, frozen in time forever, but as they continued to evolve in changing circumstances. Far from transferring its proper legislative function to ‘another body’, Parliament ‘brought rights home’, in the phrase in use at the time.
The Strasbourg judges are neither poets nor unacknowledged legislators of any kind. They examine the lawfulness of actions by States, according to principles that the States (some more democratic than others) have adopted. States normally win. Some people think the Court is too deferential to States. If a State withdrew from the Convention in order to be relieved from compliance with Strasbourg, it could appoint its own Human Rights Court to make rulings on the Convention, which it could call its Supreme Court. If the rulings of that Court were subject to reversal by Act of Parliament – a practice to which Sumption refers in relation to non-human-rights cases – then what status would human rights decisions, and the rights themselves, have? Much reduced. They would be temporary, provisional, precarious. Under a British Bill of Rights, Lord Sumption and his colleagues might make a human rights decision that the government disliked, and Parliament could then reverse it by legislation. If by some constitutional wizardry that was made impossible, people would make the same complaints about our Supreme Court as they now do about Strasbourg – unless the members of that Court all adhered to the self-denying, Sumption doctrine. Our Supreme Court would probably look more like the US version, complete with its own version of fights about ‘originalism’, but without the sacred text of their Constitution to guide all the branches of government. How much of an advance would that be?