One of the “great unspoken problems” about human rights law

15 November 2011 by

... is at the core of Jonathan Sumption QC’s  FA Mann Lecture.  His central point is not human rights as such, but our misconception of Parliament and the perceived need for judicial constraints on the action of the state.

Drawing on his not inconsiderable command of history  he sets out to explain that the  immense powers exercised by modern governments over their own citizens have arisen almost entirely from the collective aspirations of the population at large, “aspirations which depend for their fulfilment on persistent intervention by the state in many areas of our national life, and which no democratic politician can ignore.” We fool ourselves if we still view this as a power-grab by ambitious ministers and officials. The truth is that a powerful executive is “inherent in the democratic character of the modern state.”

So the real reason for the rapid development of judicial review since the sixties seems, in Sumption’s view, not to have been the growing power of the executive, but the declining public reputation of Parliament and a diminishing respect for the political process generally.

….I cannot be the only person who feels uncomfortable about the implicit suggestion that it is the function of the judiciary to correct the outcome of general elections.

And indeed he is not the only person: Lord Hoffmann and Laws LJ are very much on a footing with Sumption here.  The growing tendency of judges to intervene in what Laws LJ referred in R(Begbie) v Dept of Education [1999] as “macro-policy” has become more pronounced. The principle that “fundamental rights”  cannot be overridden by general or ambiguous legislation, without explicit provision being made for this result, is a principle of judicial review that has been applied for decades. Sumption has no quarrel with this. But it does beg a very big question – precisely what are these rights that are so fundamental that no power can derogate from them?

there has been a noticeable tendency for the range of fundamental rights and principles to expand over the years, so as to embrace some which seem a good deal less than fundamental. It has been held, for example, to include the right to fish in tidal waters, the right of political pressure groups to advertise on radio or television, and the right of litigants in person in receipt of income support to bring legal proceedings without paying court fees. Many of the decisions of the courts in this area have edged towards a concept of fundamental law trumping even Parliamentary legislation.

The famous coup by the Divisional Court in 1994 when it declared unlawful the government’s decision to construct a hydro-electric dam in Malaysia was an important step in blurring the distinction between politics and law:

In substance what the Divisional Court decided was that this particular development grant was not a good idea. They therefore interpreted the statute as limiting the power to grant development aid to projects that were a good idea. Who was to decide what was a good idea? Naturally, the Court itself. The practical effect was to transfer to the court the discretionary powers of the Secretary of State on a matter of policy and the task of assessing the project’s merits.

The Pergau Dam case was an early example of the courts’ tendency to justify their political preferences by washing them in the waters of principle. Not that it hadn’t happened before, it was just a matter of the public being so acclimatised we didn’t notice then, and we don’t notice now.

The widest flowing stream of judicial review applications involves asylum and immigration matters, which as Sumption explains are approached from the different end of a telescope. The judiciary’s instincts are moulded by their experience of individual cases. Policy-makers and the people who elect them on the other hand are primarily concerned by the problem viewed impersonally and en masse. But there is another tension in play here, which is that the courts – and those who support their views – have the so-called “higher” argument, so that their solutions are pitched at a level that refuses to recognise the legitimacy of what actual persons either fear or desire (what we might call the “Daily Mail” effect). In the words of US jurist Stanley Fish,

When principle enters the picture and takes it over, no on is able to talk about what really is on his mind

Furthermore, the myth of the universality of the European Convention of Human Rights conflicts with some very basic principles on which human societies are organised. The problem, as Sumption sees it, is that the Strasbourg Court

… has treated the Convention not just as a safeguard against arbitrary and despotic exercises of state power but as a template for most aspects of human life. These include many matters which are governed by no compelling moral considerations one way or the other. The problem about this is that the application of a common legal standard works breaks down when it is sought to apply it to all collective activity or political and administrative decision-making. The consensus necessary to support it at this level of detail simply does not exist.

Sumption uses the case law on abortion since the landmark (and still controversial) Supreme Court decision in Roe v Wade to illustrate the difficulty created by these fundamental differences in opinion. But we need go no further back than the recent judgment on fertility treatment to appreciate the profound differences between the signatory states to the European Human Rights Convention. If the Strasbourg Court had found a European consensus about access to rapidly developing techniques of artificial procreation, it would have declared such access to be a central part of the human right to respect for private and family life. As it was, the Grand Chamber resiled from the Court’s earlier finding that the Austrian ban on donor eggs and gametes to be disproportionate and declared that there was no breach of Convention rights. In other words, the Court has failed to install itself as a neutral arbiter between competing systems of belief, because it has nothing genuine to offer as a substitute. This is, in Sumption’s words

one of the great unspoken problems about human rights law, which is that very many human rights issues are in reality not issues between the state and its citizens. They are issues between different groups of citizens, whose resolution by democratic processes will not necessarily lead to the same answer everywhere.

Joshua Rozenberg suggests that Sumption demonstrates “a certain naivety”: Parliamentary scrutiny is certainly not enough to ensure that statues are properly drafted, internally consistent and fair in their application. But this is not what Sumption is saying. He is querying our assumption, which has been allowed to go unexamined for too long, that judicial intervention is an adequate and indeed the only appropriate response to (admittedly imperfect) parliamentary processes. This assumption rests, not on some unenlightened faith in individual judges, but on the misguided belief that as justice unfolds, it is neutral between competing moralities or visions of the good. To admit that rights cannot be defined independently of variables in society’s values, or that rules are general in the sense of not being hostage to a particular and contestable point of view,  opens up a black hole that it seems is too hard for us to contemplate.  We need to be alerted to the fact that justice – law, judges, the judicial process – is contaminated by the very value judgments it supposedly brackets. This Jonathan Sumption does, and the fact that he does so against his apparent self interest as newest recruit to the Supreme Court renders his words ever more authoritative.

We need to face up to what is happening. Judicial reticence is typical of English law, which shies away from grand statements of principle, preferring instead an attitude of pragmatism. But Sumption’s conclusion is that this has unfortunate consequences.

It has meant that over a period of time judicial decisions have brought about significant constitutional changes, which were not necessarily noticed or intended by their authors. It has also meant that the wider constitutional issues arising from judicial decisions, because they are not publicly acknowledged, are not matters of public debate. There is surely a case for saying that constitutional change, where it occurs, should happen on purpose and after proper national debate about its wider implications. It should not come about by accident and without any acknowledgment that it is happening at all.

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  1. ObiterJ says:

    Mr Sumption seemed to take a considerable time to get to say that judicial review must be curtailed. For Sumption, judicial deference must extend beyond traditionally recognised “non-justiciable” areas to the whole range of government activity. The Begbie principle with clogs on.

    My problem with reading is that, if his views are adopted, judicial review will be minimal since just about any decision can be taken to impact on “policy.”

    Furthermore, to suggest that Parliamentary scrutiny over policy is adequate is a comment very much at variance with reality even though, to be fair to Sumption, scrutiny has improved in recent years particularly via the committee structure.

  2. ….I cannot be the only person who feels uncomfortable about the implicit suggestion that it is the function of the judiciary to correct the outcome of general elections.

    and that suggestion is implicit in what exactly??? STRAWMAN!
    *lights flash and klaxons blare as the strawman alarm goes off*

    shame that such a celebrated member of the bar comes up with such a transparent argument.

  3. John Jolliffe says:

    A pleasing irony of Sumption’s piece is that the C18th authors of the US constitution and C21st advocates of HR and JR are put in an analogous position, despite having nothing much in common. Both are elitists who mistrust the voters and want the judges to protect them from unbridled democracy. But whereas in the C18th it was because they feared that voters would destroy property rights, C21st liberals fear Parliament/voters can’t be trusted to do the right thing about immigration etc. Not that Rozenberg et al would be grateful for the comparison…

  4. Liam Vance says:

    “He also seems to believe that poor people should not be able to bring or defend civil actions because they can’t afford the protection of the Law. Well that says it all!”

    Exactly where does he say that?

    What other “appalling and inhuman assumptions” has he made?

    1. Hi Liam it is in the paragraph below this is the extract from the paragrpah

      “..and the right of litigants in person in receipt of income support to bring legal proceedings without paying court fees…”

      To stop fee remission would mean that justice would only be available for those who can pay the growing costs of Court fees.

      “there has been a noticeable tendency for the range of fundamental rights and principles to expand over the years, so as to embrace some which seem a good deal less than fundamental. It has been held, for example, to include the right to fish in tidal waters, the right of political pressure groups to advertise on radio or television, and the right of litigants in person in receipt of income support to bring legal proceedings without paying court fees. Many of the decisions of the courts in this area have edged towards a concept of fundamental law trumping even Parliamentary legislation.”

  5. Sambo says:

    Re. the use of Stanley Fish’s maxim: “When principle enters the picture and takes it over, no on is able to talk about what really is on his mind.” are you implying that prejudice and emotion are more important than dispassionate rationality? Imagine a scientist making that claim.

    Of course, the judiciary is not purely objective. However, the government is, whether you like it or not, greatly sponsored by business through donations, various taxation, government loans and so on. The government cannot operate in its current guise without the support of business. Therefore, structurally, this creates the potential, through pragmatism, for government to favour business over citizens and justice.

    Therefore, though the judiciary may be not directly democratic, certainly have their own prejudices and agendas – they do at least represent a counter-weight agaisnt the corporate government.

    The “individual justice” approach of the judiciary that is being questioned is surely one way that the average person’s standing and importance in society can be raised to equal that of a multi-million pound corporation?

    There are undoubtedly problems with the concept of human rights. However, if anyone is misconceiving the nature of Parliament, it is those who presume that government is highly democratic and independent. Such persons should follow the News Corp story more closely, for here is the classic case of government merging with big business and leaving justice in the gutter.

  6. So the government whines about judges “interfering” with state oppression and suppression and then a few weeks later Sumption is appointed and starts this wittering. What a co-incidence. I think of him as Michael Pinto-Duschinsky in a wig.

    The government just wants to get on with attacking disabled people, prisoners, travellers and other vulnerable groups using the ‘might is right’ “logic.”

  7. Mr Sumption makes too many assumptions. He is Hitler’s and Stalin’s Dream Judge.

    May we the British People be saved from Mr Sumptions appalling and inhuman assumptions.

    The law itself was created by the Temple to protect the individual from the power of the executive.

    He also seems to believe that poor people should not be able to bring or defend civil actions because they can’t afford the protection of the Law. Well that says it all!

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