One of the “great unspoken problems” about human rights law
15 November 2011
... 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  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.