Another week, another “we must leave the European Convention on Human Rights” piece, but this time from the learned Lord Sumption, the former Supreme Court judge famous for his criticism of lockdown (and for wearing a different tie on each day of the first Gina Miller Brexit case).
His Spectator article starts with the warning that “hostility to the Convention has become a trademark of the right wing of the Conservative party, which invites unnecessary partisanship”, and goes on to warn us that the issue is “far more important than Suella Braverman’s battles with boat people and ‘lefty lawyers.’” This is an encouraging start: we are no doubt about to read an impartial and lawyerly examination of the issues at stake.
Predictably—this is after all the Spectator—that is not what we get. What follows is a polemic that does nothing more than set out the usual tropes, ignoring the real legal, economic and political—including geopolitical—implications of the UK leaving the Convention, and by extension the Council of Europe. Those who care about the future will read and despair.
The first point Sumption makes is that we don’t need the Convention: “many of the rights which the Convention proclaims were part of British law long before the Convention was conceived”, he says—and the rest can be enacted if we want them. It’s easy to establish what this means; all one need do is look at cases in which the European Court of Human Rights held UK legislation or policy to be in breach of Convention rights, prior to those rights becoming part of our domestic law in 2000 by way of the Human Rights Act. By doing this, we can see the rights that “we” wanted and the ones that “we” didn’t.
So, let’s take a few examples. The UK did not want to protect the personal autonomy of gay people and was content to breach their right to private life. As Sumption points out, the right to “personal autonomy” derives from Article 8 (in his words: “the notorious Article 8”). Viewing the Convention as a “living instrument”, to be interpreted having regard to existing scientific understanding and moral and social norms, the Court in Strasbourg has held that the obligation on the state to guarantee the right to private life does not merely prohibit contracting states from doing things like tapping our telephones without lawful authority, it also obliges the state to guarantee effective protection for personal autonomy, including sexuality.
Sumption is right, of course, that this has entailed the Court developing rights “never envisaged” by those who drew up the Convention. Along with many states when the Convention was opened for signature in 1950, the UK did not envisage an individual’s sexuality—or at least homosexuality—as being worthy of protection. Indeed, we criminalised it. In 1952 Alan Turing was chemically castrated. Two years later he died from cyanide poisoning, which the inquest verdict recorded as suicide. It was not until 1967 that England and Wales ended criminalisation of homosexual acts, but criminalisation remained in Northern Ireland right up until the Strasbourg Court declared it to be a breach of the right to private life in the case of Dudgeon v United Kingdom, after which it was ended by the Homosexual Offences (Northern Ireland) Order 1982.
But even then, the UK military maintained its ban on homosexuals serving in the armed forces. This was defended by the government up to the Court of Appeal, which held that since the policy was supported by parliament and by those from whom the ministry was entitled to seek advice (and so met Sumption’s definition of “democratic”), the ban was lawful. The House of Lords refused permission to appeal. The Strasbourg Court rejected the government’s claims that no rights were violated, declaring that the soldiers’ dismissals breached their right to respect for their private life, and, while holding that the harm they suffered did not meet the threshold of inhuman and degrading treatment, noting that “treatment which is grounded upon a predisposed bias on the part of a heterosexual majority against a homosexual minority of the nature described above could, in principle, fall within the scope of Article 3.” Twenty years later, we see the government celebrating the revocation of this policy as if it was responsible for its ending. The truth is that Lord Sumption’s “we” did not want these individuals to be protected by any right; “we” argued that they had no such rights.
I should add an important caveat. The above position was the public one but in truth, from what I saw behind the scenes (I acted in Strasbourg for Smith and Grady, two of the claimants), the government did not believe in the policy and knew even then that it was shameful and indefensible. Today, those same individuals might fairly claim that it was Lord Sumption’s “democracy” that made them defend it. They did not feel that overturning the ban would be palatable to their MPs or to the general public. Strasbourg was useful; the government achieved a policy change that it could not have achieved in what Lord Sumption would call a “democratic” way. But while he might consider this undemocratic, for me, judgments like this one are a core part of democracy—a true democracy respects and upholds individual autonomy, irrespective of the wishes of the majority.
There are many other examples: corporal punishment, inhuman and degrading treatment, the protection of journalistic sources, the right of access to a lawyer in police detention, gender recognition certificates, race discrimination, freedom of expression, phone tapping—all areas where “we”, the people, did not want to protect the rights of those individuals affected; “our” view was that there were no such rights.
Sumption may believe that this is the consequence of democracy. A true democracy, he says, decides what rights people living within its territory should have: “we can have whatever rights we want if there is a sufficient democratic mandate for them. The real purpose of the convention is to make us accept rights which we may not want and for which there may be no democratic mandate.”
A true democracy respects and upholds individual autonomy, irrespective of the wishes of the majority
In so arguing, he ignores lesson 101 on the history of fundamental rights and of the ECHR, in particular. The Second World War exposed in a monstrous fashion why “sovereignty”, as the inviolable power of a state to determine the rights and freedoms of its citizens, could never again be allowed free rein. The Nuremberg laws and comparable legislation had been the exercise of sovereign power; it was a sovereign matter for Germany to decide how it treated its Jews. Banning Jews from university, from acting as lawyers, from being doctors was lawful. Similarly, sterilisation of people with disabilities—this was within a sovereign’s power and not subject to any higher international control. Sovereignty trumped all: whether citizen or subject, the state was the final arbiter of your rights and freedoms. Of course, this was not a democracy—but the point I am making here is that it was the exercise of sovereign power.
Lord Sumption’s view is that sole sovereign power is essential to democracy. Applying such an approach today, the government could decide to enact legislation banning Pakistanis from teaching on the basis of Braverman’s false claim (now found to be such by the press regulator, Ipso) that perpetrators of child sexual exploitation were “almost all” British-Pakistanis. That would be a “democratic” decision. Enshrined in primary legislation, it could not be challenged in our courts despite it being plainly irrational; parliament would have decided it and parliament is the expression of “our” democratic will. There is no right in the UK, save in statute, not to be discriminated against. And there is absolutely no basis in the common law for primary legislation to be struck down, let alone “merely” because it is discriminatory. I do not think that this example is fanciful or that we are far away from these kinds of ideas.
This demonstrates very well why Lord Sumption has got this so wrong. The majority is very often fond of policies that target and demonise minorities; policies that make minorities’ lives more difficult—and sometimes intolerable—and politicians know this and can use such policies to great electoral benefit, offering to assuage the fears and prejudices of the majority in exchange for their vote. Fundamental rights are required for the very reason that majoritarian decision-making puts at risk the rights and freedoms of minorities.
Lord Sumption doesn’t answer this problem by arguing for a written Constitution that enshrines fundamental rights and enables UK Courts to strike down primary legislation, as he might have done. Instead, he complains that a foreign court should have any role in considering the legality of British laws.
His basis for that complaint is thin: that we do not have any input into the Strasbourg Court and that the court has gone too far and is making too many decisions in too many areas.
As to the first, governments should not interfere with the courts but, in any event, we do have a British judge in Strasbourg who sits on nearly all British cases. And the international element of rights protection is essential—an external body is needed to keep a check on all states. The mutual review of how neighbour states are behaving towards their citizens is a good discipline; one that encourages better standards, including in judicial decision-making. We benefit from this not just in terms of our rights but also in terms of other countries being kept in check. It’s easy (albeit complacent and historically inaccurate) to claim that rights will always be maintained in the UK—but can we say this about every country in Europe? Of the 45 other countries of the Council of Europe, which are we happy to leave entirely without international safeguards?
As to the complaint that Strasbourg has gone too far, Lord Sumption singles out the court’s application of its jurisdiction, criticising the fact that Article 32 of the Convention makes the court “the sole judge of its own jurisdiction” and claiming that, consequently, the Court “can and does help itself to whatever additional powers and jurisdictions it likes”. He also attacks Article 8 generally (the right to private and family life and correspondence).
He is simply wrong about jurisdiction. Quite apart from the fact that higher courts always determine their own jurisdiction and Article 32 restricts the Court to adjudicating on Convention rights, he is wrong in arguing that Strasbourg suddenly significantly extended its jurisdiction in the 2011 case of Al-Skeini, on British overseas operations. International law, as well as case law going back to at least 1974 relating to Turkey’s invasion of Cyprus, established that where the state exercises authority and control over individuals in another territory, including in the context of military operations, those individuals fall within that state’s jurisdiction.
I acted for the mother of a British soldier who died in Iraq. It seemed blindingly obvious to me (and was fully backed up by case law) that a British soldier is subject to UK jurisdiction for the purposes of the Convention. Oddly, the UK denied it on the basis that he was not on UK territory. In making our argument, we relied on the very same case law that was ultimately applied by the Strasbourg court in the later case of Al-Skeini. The High Court and the Court of Appeal agreed with us, applying that case law. The Supreme Court did not. But after Strasbourg subsequently released its Al-Skeini ruling, the Supreme Court was faced with another case brought by British soldiers and had to reverse its earlier ruling. There was no leap or change in the case law as Lord Sumption claims. I was in both of the soldiers’ cases; Lord Sumption did not sit on either of them, nor did he adjudicate in the Al-Skeini case.
As to Article 8, I have made points already on gay rights. But there are so many other ways in which the world has changed since 1950. Human rights instruments are living instruments because our scientific and moral knowledge, understanding and views change. The court recognises this not by making radical changes, but by looking at the consensus across the Council of Europe. Only if there is one will it be willing to step in to consider a state’s actions in areas of moral and social judgment, and even then it affords states a wide margin of appreciation in these areas. This can be seen most clearly in the gender recognition cases where, following a series of findings by the court that the Convention did not oblige states to recognise a gender change, the court reversed itself due to a change in the scientific, moral and social consensus across the Council of Europe.
Finally, perhaps the most important point of all—which Lord Sumption fails to consider properly—concerns the geopolitical implications of the UK leaving the Council of Europe, as it would have to do if it pulled out of the ECHR. Much consideration has been given to the consequences of this for the Good Friday Agreement and the Trade and Cooperation Agreement with the EU, both of which commit us to the Convention, and to the fact that in undermining this international organisation we would cause much harm, including to ourselves. This is not a matter of saying that we would be like Russia or Belarus—of course we would not. But we would nonetheless share a badge of shame, and that is not in our economic, political or social interests.
Lord Sumption is fanning dangerous flames, the flames of nationalism. His piece replaces the mythical word “sovereignty” with another mythical word: “democracy”; but in truth, he is saying much the same as those who stood under the banner of sovereignty in calling for the UK to leave the EU. Just as that ill-understood concept was and is abused, so he abuses the word “democracy”.’ Nothing has provoked this sudden need for us to leave—and Sumption did not previously advocate withdrawal. I am frankly baffled by his change in view. Sadly, but in truth, his words are of a piece with “Suella Braverman’s battles with boat people and ‘lefty lawyers’.”