The courtroom of the European Court of Human Rights in Strasbourg. Photo: Rainer Jensen/DPA/PA Images

Helena Kennedy vs Jonathan Sumption: Are our human rights laws working?

Is the Human Rights Act a vital safeguard or inherently undemocratic? Two of Britain's finest legal minds go head-to-head
July 12, 2019
Yes—Helena Kennedy: “What have the Romans ever done for us?” is the old Monty Python joke. “What have human rights ever done for us?” might be asked by readers. But our Human Rights Act (HRA) has been a vital tool for justice. The Act has been of huge benefit to many ordinary people—and especially women—as the victims of crime.

The HRA, which incorporates the European Convention on Human Rights (ECHR), ended detention without trial, the use of torture, arbitrary detention of migrants; the bedroom tax being used against people with disability who need overnight carers. The “right to life” in the HRA was used to secure the reopening of the inquest into the death of Naomi Bryant, who was killed by a serial sex offender released on licence without appropriate supervision.

Meanwhile, the Act was used to expose cruel and inhumane treatment of the elderly in Stafford Hospital, to challenge the failures that resulted in the Rotherham scandal, to reopen the Hillsborough files and secure a new investigation into the suicide of Private Cheryl James in the toxic, “sexualised” atmosphere at Deepcut Barracks.

For these reasons and more I listened to your BBC Reith Lectures on human rights with despair. Your negativity about human rights law was mischievous and unworthy of you. You lent yourself to the most reactionary forces in Britain today.

Attacks on the European Court of Human Rights have become an opportunistic tool for creating hostility to the EU (while the two in fact operate under different legal systems, this doesn’t seem to matter). In addition, our global influence as a nation committed to the rule of law and protection of human rights is undermined when someone of your stature, a former justice of our Supreme Court, propagates such a distorted account.

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No—Jonathan Sumption: I do not deny that the HRA has produced some admirable decisions as well as some highly questionable ones. My objection is a different one, namely that it is not a legitimate way of making law in a democracy. This was the point of my Reith Lectures, but you do not address it at all. Perhaps you think that it is unimportant because the ends justify the means. You should not need me to point out how dangerous that argument is.

Why is human rights litigation not a legitimate way of making law? Because it involves the judicial resolution of issues many of which are essentially political in nature. The critical question in the great majority of human rights cases, including most of those which you cite, is not whether the right exists in principle. It is whether it is justifiable to depart from an accepted general principle on account of some legitimate public interest, such as public health, economic wellbeing or the prevention of crime.

But identifying what is a legitimate policy objective, assessing how important it is, and weighing up incommensurable policy factors—these are not proper judicial functions. They are questions of policy, for politicians answerable to parliament and removable by voters if they do not like what is happening. In a democracy, the political process is the only way that people can influence the content of law or government policy. Their input should not be marginalised, however admirable the results in particular cases.

I entirely reject the attempt in your last two paragraphs to associate me with “reactionary forces” or mendacious arguments against the EU. I believe in the same liberal values as you do. But I also believe that in a democracy, liberals must take their chances in the political marketplace like anyone else. They are not entitled to a constitutionally privileged status for their values. Anyone who challenges a comfortable orthodoxy is liable to acquire unwelcome allies, but that is not a good enough reason to evade fundamental constitutional issues like this one.


Yes: I think you have a rather idealised understanding of how electoral politics works. It is a very blunt instrument: we vote once every few years and a lot happens in between over which the electorate has little control. Many people have to vote for a person or party despite reservations they have. During an election few, if any, of the issues addressed by the HRA cases float to the surface of political debate. The HRA is designed to protect minority groups who sometimes the majority wish to victimise. It is not an accident that giving courts the power to protect the human rights of the vulnerable became more common after 1945. The Third Reich taught us that electoral politics alone may not be enough.

You raise the extent to which judges deal in policy issues. Of course they do this everyday as part of their ordinary role under the common law. This is done without difficulty.

On the question of how we make law in a democracy, consider that by enacting the HRA in 1998, parliament authorised the UK courts to enforce the ECHR. Before then, UK citizens were protected by the rights in the Convention but they could only be directly enforced in Strasbourg. There was nothing undemocratic about parliament deciding to give UK courts that right when for four decades the Convention had afforded citizens protection. It was just that most people did not know that it had done so. In one of your lectures you appeared to raise the question of whether parliament acted undemocratically in enacting the HRA. Such a claim would be extraordinary. And wrong.

One special feature of our human rights legislation is that our courts cannot strike down legislation incompatible with the Convention. Parliament is sovereign. The most they can do is make a “declaration of incompatibility.” It is for parliament to decide how to respond to it. That cannot be undemocratic. To overlook this would be a serious flaw. Courts are not perfect, not failsafe, but they are a vital safeguard.

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No: In a democracy, the way we make law matters. The HRA creates a new and dynamic source of law whose content depends on a highly political international court, the European Court of Human Rights in Strasbourg. Its rulings are not only or even mainly concerned with the protection of minorities. They are designed to entrench a remarkably broad range of legal rules, many of them open to legitimate dispute, as the constitutional basis of the state. The rules have legislative force, but there is no democratic input into any of them.

You say that because the HRA does not allow the courts to override an Act of Parliament, parliamentary sovereignty is preserved. But that is to mistake the form for the substance. Parliament cannot amend or abrogate the Convention or ignore the rulings of the Strasbourg court without acting in breach of an international treaty to which the UK is party. If it were to do that it might as well withdraw from the treaty. Since parliament is the only means by which the people have any influence over their law, this state of affairs is manifestly inconsistent with democratic lawmaking. The development of common law rules by the domestic courts could hardly be more different.

Does this human rights regime become democratic simply because parliament has authorised it? Of course not. A democratic parliament may authorise undemocratic things. If ours were to forbid criticism of government policy, would that be democratic?

You are right that we must learn the lessons of the Third Reich. But let us understand what those are. First, the rule of law depends on the existence of a political order generally acknowledged as legitimate, and not the other way around. Law is impotent in the face of political breakdown, as it was in 1930s Germany. Second, a method of making law is not democratic simply because a democratic legislature has authorised it. The Reichstag gave absolute legislative power to Hitler. Third, every anti-democratic regime denigrates electoral politics, as you seem unwittingly to be doing, on the grounds that it cannot speedily deliver what they think important.


Yes: On the basis of your critique of the ECHR you must be against all treaties and all international law. As with any treaty, the legislature agrees to yield what would otherwise be within its sovereign rights, but it does so to promote some grander ambition, a more significant policy goal requiring international cooperation.

Surely the legal rules that Strasbourg enforces are not open to serious debate? The text was drafted by Conservative British lawyers with the blessing of Churchill.

Your characterisation of the jurisprudence of the court as adventurous is ill-informed and really a descent into low abuse. The principles by which a treaty is interpreted are well established by international law and reflect precisely what the court does. In your lecture, you recognise that a concept like inhuman treatment must develop with contemporary standards of democracy. Law has to be a living instrument to have value.

We can agree that not everything that an elected legislature does is democratic if that word is to be given a substantive and not a mere procedural meaning. If parliament decided to restrict the franchise to white men, there may be no domestic recourse to this “sovereign” act but Strasbourg would strike down that rule as discriminatory. Thereby, it would be protecting true democracy. Access to the courts to remedy the failures of the legislature enriches democracy. It has done so on phone tapping and on respecting the human dignity of homosexuals in Northern Ireland and so much more.

You are wrong to maintain that Strasbourg functions without democratic input. It is accountable to the Parliamentary Assembly of Europe, in which parliamentarians of all contracting states are represented. Any decisions can be debated there and are frequently subject to revision.

Your arguments give comfort to Putin and his allies who reject liberal values. That is why I am so disappointed that you make them. In our disrupted world with such fragile societies, the rule of law is vital but it must be imbued with the values of human rights.


No: I am not against all treaties. But I am against treaties which transfer the power to make law to a court not constitutionally responsible to the citizen body. And I am against a principle which hollows out democracy, by creating a new source of fundamental law immune from democratic input. I am against these things partly because I think they are unprincipled, and partly because I think that only the compromises inherent in the political process (imperfect as it is) can accommodate society’s divisions and enable us to live together.

No principle of international law justifies Strasbourg’s unique approach to interpretation. Nor does law, in order to have value, need to be capable of autonomous judicial development without democratic input (a “living instrument”). Law can draw its life from the ordinary process of review and amendment according to the developing values of a representative legislature. I am baffled by your reference to the Parliamentary Assembly of Europe. It is not a legislative or elective body and the Strasbourg court is not accountable to it for its decisions.

Personally, I could accept even a treaty which transferred lawmaking power to a constitutionally irresponsible body if I thought that it truly did promote some sufficiently important (“grander”) ambition that could not be achieved at a domestic level. So, on balance, I accept the treaties constituting the European Union. But judicial decision-making under the ECHR satisfies none of these criteria. It is an unholy mixture of grandeur and officious meddling. It achieves nothing that cannot be achieved with perfect democratic legitimacy by ordinary legislation.

Your reference to Putin misses the point. I criticise international human rights law from a liberal perspective. I think that it represents an authoritarian approach to law which betrays classic liberal values.

Helena Kennedy is a human rights lawyer and author of “Eve Was Shamed” (Chatto & Windus)

Jonathan Sumption is a former Supreme Court Justice and presented this year’s BBC Reith Lectures