On 8th June 2019 former Supreme Court judge, Jonathan Sumption, critiqued the status of the European Convention on Human Rights, particularly, Article 8, and its impact within UK domestic law. The lecture, part of the series of Reith lectures can be found here.
The potential implications of this lecture and critique from such a venerated figure, on the legitimacy of the Human Rights Act, will likely embolden those who seek to have the Human Rights Act scrapped, and replaced with a British Bill of Rights. A sure sign of validation for the Brexit minded?
It might seem shocking to hear that “fascism” and “human rights” are not mutually exclusive, but, as one would expect from Sumption, a compelling argument ensues.
The brief genealogy and analysis into the heart of moral rights and their source of legitimacy, is an important iteration and helps focus the landscape.
Sumption, reminds us that “natural rights”, referring to the early description of these rights by the famous jurist William Blackstone, are those rights which are immutable, inalienable, that are inherent in our humanity. They are “self evident”. However Sumption rightly argues that to give these inalienable rights reality, they must find expression in law, and as such [in the UK context at least] are subject to the democratic political process.
Sumption quickly exposes the tension between the “self evident” or “inalienable quality” of human rights and their expression through a democratic political process, namely that it is the majority, or the “wishes of the population’ who get to decide what rights are inalienable, in other words, which rights are fundamental to society. Therefore, and paradoxically, by the same process, it is also the majority who can change which rights are no longer “inalienable” and vice versa.
There has been a natural resistance within Human Rights Discourse to counter this, and allow for the source and legitimacy of fundamental rights to be built independently of the wishes of the population, so as to create a haven from the “tyranny of the majority”.
Sumption asks, where does this source of legitimacy arise, if not from the democratic political process? The great 18th century Scottish philosopher of the Scottish Enlightenment, David Hume, is powerful referenced, who rejected the notion of natural rights derived from abstract reasoning or empirical observation, and found that the legitimacy of rights was derived from the formation of “collective moral sentiments”. Sumption adds that rights cannot exist in a vacuum, and as such must engage with the law, and as such part of the democratic political process, which he argues is the best system we have at present in reflecting and giving political expression to collective moral sentiments.
It is at this juncture where the European Convention on Human Rights enters the argument, in that it is a supra national structure, which has the power to act independently from the UK political process, and such derives its legitimacy outside of it. However, as acknowledged by Sumption, it was the UK parliament itself in passing the Human Rights Act 1998, which agreed to the supremacy of the European Court of Human Rights, as the final arbiter on whether the UK has met or breached its obligations under the Convention. Surely then this answers the question of where and how the legitimacy for human rights are formed independent of the political democratic process, if that same process agrees to accepting the supremacy of the European court.
However this is not the end of it. Sumption rightly states that there are times when the political democratic process acts in a way which undermines or is otherwise inconsistent with its democratic constitution,
“…Parliament could abolish elections, it could ban opposition parties, it could forbid criticism of official policy, it could transfer its power to a dictator. The German parliament did it in 1933 and the French parliament [sic] in 1940. Decisions of this kind would have the authority of a democratic parliament but they would hardly be democratic.”
It is a simple and stunning point which outlines the highly subtle and fragile nature of a democratic political process and the legitimacy of its decision making.
Sumption warns us not to fall into dogmatism and suspend our critical faculties when it comes to analysing the legitimacy of the decisions made by Parliament. Just because it is by operation a seemingly democratic political process, this does not mean its authority and legitimacy is “divine” and beyond our capacity to analyse and challenge. In other words a decision making system which subscribes to a democratic political process, should not be seen as inherently legitimate.
In this way the Parliamentary endorsed Human Rights Act, which transfers its Supremacy to the Strasbourg Court is, to Sumption, such an act that should be exposed to to our critical analysis in relation to assessing whether it is an act of democratic self harm.
In principle, Sumption is in favour of a universal statement of fundamental rights, and for a mechanism acting as an external check. However his main gripe is that there are certain rights derived from the Convention which undermine the very concept of universal human rights and therefore contaminates the legitimacy of universal Human rights. In particular Article 8, the right to private and family life.
Sumption reminds us that its original conception was to protect the individual against surveillance in a totalitarian state, but has now morphed into a right which allows external courts an avenue of influence into the UK’s domestic legal affairs. His argument is that it does this by changing the role of judges when Article 8 rights based disputes are put before them.
Clearly he is correct in describing the standard mechanisms of Article 8. Namely that the state can interfere with the Article 8 rights of an individual, in the pursuit of a legitimate aim which is necessary in a democratic society. This question as to whether the interference is “necessary in a democratic society” is tied to the question as to whether the interference is “proportionate”. In essence the judge has to weigh the interests of the individual versus the collective interest.
The situation created by Article 8 is that it calls upon a Judge to decide on whether the aim is legitimate and then proceed on deciding on whether the interference is necessary in a democratic society. Which are intensely political questions, and not suitable for a judge to decide upon. Hence why Article 8 and other qualified rights, have become, in his assessment, highly unsuitable Human Rights instruments as they circumvent the population through its democratic political process to engage in these questions by converting them to questions of law.
Some may argue that it is far from accurate to characterise qualified rights, particularly Article 8, as allowing judges to enter the political arena, and somehow removing the democratic political process from these questions. Take the example of Article 8, in relation to overstayers/people who no longer have immigration status but who have lived in the UK for a substantial period of time without status. The Immigration legislation, makes it expressly clear that there is a legitimate aim in there being an effective immigration system, and that the length of time in the UK, without status, should be given little weight in the final assessment as to whether that persons removal would be disproportionate. In other words the democratic political process sets out clear criteria for the judiciary to following when deciding whether the interference of an individuals’s Article 8 rights is proportionate and necessary in a democratic society.
When it comes to the Article 8 rights of foreign national offenders, the Immigration legislation increases the public interest in that person’s removal, making it very difficult for the individual Article 8 rights to ever trump the collective rights, the weight of which have been prescribed through Parliament.
However Sumption’s point is the Human Rights Act allows for these cases to be referred outside the UK court system to challenge the legitimacy of the legitimate aim articulated in Parliament. To this extent Sumption refers to the interference of the Strasbourg court when ruling in 2008, that the UK Parliament’s statutory decision to prevent serving prisoners from voting, was not compatible with the convention, and further that it was a question of law and not one for Parliament.
From this Sumption elicits two concepts of democracy. The first one is a constitutional mechanism for arriving at collective agreements whilst accommodating dissent; the other, a system of a generalised established set of political values, or a value based system, much like that established post Second World War i.e. the Convention.
The first owes its legitimacy to the democratic process itself, and dictates the political values; the second derives its legitimacy from a set of generalised political values independent from a democratic political process derived from elected representatives, and such their legitimacy is determined by their alignment with these values. When it comes to the latter, the only way to change this set of political values, is through a court of law made up of a “priestly caste of judges” who decide on the matter. For Sumption, this concentration of decision making power in relation to what he believes to be fundamental political questions, draws some chilling similarities.
Sumption draws the parallel with the conception of a value based democracy with a set of political values determined independently of the population, as sharing a fundamental commonality with communism, fascism, islamism, and all the other ism’s; that have all claimed a monopoly on what is the legitimate political discourse independent from a democratic element and decided by a small group of individuals or individual.
Sumption is not saying that the convention is done, he clearly recognises and is in favour for universal statement on universal rights, most of which are contained in the convention such as no torture, no arbitrary killing, freedom of expression/thought, due process, right to trial, freedom from inhuman/degrading treatment etc. These rights are clearly fundamental as their breach would undermine the democratic process itself, which Sumption, rightly states is a highly fragile construct and constantly under attack therefore its foundations need protecting.
However it is those rights which convert the political questions to questions of law, that he sees as dangerously encroaching the scope of the democratic political process, in allowing an external influence to directly supersede the democratic process. Sumption argues it is those rights which are fuelling the argument for an end to the universal conception of Human Rights. It is a warning well worth considering in preparing for the battles ahead to keep the convention alive.
What’s going on with Article 8 