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Lord Sumption and the Limits of the Law: Is the Human Rights Project Undemocratic and Elitist?

David Bedingfield, barrister of 4 Paper Buildings, considers the arguments in a debate of vital importance to family lawyers.

David Bedingfield, barrister, 4 Paper Buildings












David Bedingfield, barrister, 4 Paper Buildings

Is the enforcement of "human rights" by judges elitist and anti-democratic? Is it right that we now regularly see unelected judges interpreting vague language in a constitutional document to override the clear will of the majority?

This is not a contention made only by the editors of London's notoriously right-wing press. It is also the contention of several members of the Senior Judiciary.   Lord Sumption, a Justice of the United Kingdom Supreme Court since January, 2012, has argued recently that the historic judicial deference courts in the UK must show to Parliament cannot coexist in a regime where judges are also asked to determine the parameters of fundamental human rights. In Lord Sumption's view, the human rights project inevitably ends with judges making political policy choices that should have been left to Parliament. In a lecture given in 2013 in Kuala Lumpar, and later published (along with critiques by a variety of constitutional scholars) by Bloomsbury Press, Lord Sumption argues that courts in this country are increasingly becoming "constitutional" courts in the manner of the United States Supreme Court.1   He cites de Tocqueville's well-known observation in Democracy in America in  1835 that ". . .scarcely any political question arises in the US that is not resolved, sooner or later, into a judicial question," and predicts that this is an inevitable result of a constitutional system where judges must determine "human rights."2  In Lord Sumption's view, that inevitably results in a decay of democratic institutions, and creates anti-democratic tensions in the guise of "rule of law."

This debate is vitally important to those who practise in the field of family law. Perhaps no other European Convention right has been more controversial, or the subject of more litigation, than Article 8's requirement that member states "respect the family life" of all European citizens.  The current Tory government promises to repeal the Human Rights Act 1998, and replace it with a "British Bill of Rights." It would appear, however, that Lord Sumption's arguments apply equally as forcefully to judicial interpretation of a similar provision in any UK Bill of Rights.

Lord Sumption is critical of UK courts for intruding on Parliamentary sovereignty, but he reserves most of his venom for the European Court of Human Rights.  The Court, according to Lord Sumption, ". . .has become the international flag-bearer for judge-made fundamental law extending well beyond the text which it is charged with applying."3  The essential error that has led the European Court astray, according to Sumption, is the Court's view that the European Convention is a "living instrument," and that therefore courts should not seek  to discern  original meaning of the Convention's Articles by, for example, examining what the framers of the Convention believed at the time the document was drafted.   Sumption contends this approach is not consistent with the way judges have traditionally sought to interpret written documents, is not consistent with our understanding of the rule of law, and gives rise to a democratic deficit in important areas of social policy. In particular, Sumption cites the US experience with abortion, where the Federal Supreme Court outlawed state laws unduly regulating (and in some states, prohibiting) abortion.  In Sumption's view, these inevitably controversial policy decisions should have been left to the various legislative bodies that had jurisdiction.

Though Lord Sumption does not explicitly say this, the inevitable end point of his analysis is that the Human Rights Act 1998 is simply unconstitutional, unless judges defer absolutely to the will of Parliament. The Act (and any UK Bill of Rights that replaces the HRA 1998) requires judges to make decisions that in Lord Sumption's view the United Kingdom's unwritten constitution would mandate should have been left to Parliament. It would inevitably seem, given his views, that he contends the UK should withdraw from the European Convention itself, and should not trouble with any new-fangled British Bill of Rights. After all, a "constitutional" document will inevitably cause the same problems for the judiciary, whether it is called the European Convention or the British Bill of Rights. Either document will require judges to balance "rights" against the will of Parliament or the wish of the executive.

The question, for Sumption, is this: who gets to decide? In his view, significant policy decisions should be left to Parliament, and there would appear to be no room for courts to use human rights analysis to overturn those decisions. No rights are wholly unqualified, and must be constrained to a greater or lesser extent by the rights of others. Parliament should be the ultimate arbiter of how those rights are qualified.

Lord Sumption's view is not without support from other members of the senior judiciary. Lord Scott, in the 2003 case of Harrow London Borough Council v Qazi, a case where claimants were tenants about to be evicted from local authority housing, said this:

"The Universal Declaration [of Human Rights] and the European Convention were the products of the horrors of fascism which led to World War II and the Holocaust. One of the recitals to the to the former records that 'disregard and contempt for human rights have resulted in barbarous acts which outraged the conscience of mankind.' The intention of these instruments was to enshrine fundamental rights and freedoms. It was not the intention to engage in social engineering in the housing field." 4

Lord Hoffman, in an article published in 1999 by the Modern Law Review, was even more blunt.

"When we joined, indeed, took the lead in the negotiation of the European Convention, it was not because we thought it would affect our own law, but because we thought it right to set an example for others and to help ensure that all member states respected these basic human rights which were not culturally determined but reflected our common humanity." 5 

In other words, the UK did not need a document setting out "human rights"; the rest of Europe most certainly did.

Lord Sumption's and Lord Hoffman's primary contention is that the UK delegates in 1950, when the Convention was drafted, did not intend that the document would do very much at all. It is right that the British believed this in 1950. The question is, did the delegates from other countries involved in the drafting of the document believe this as well?  Professor Danny Nicol, a Reader in Law at Reading University, examines these claims about the framers, and concludes that not all of the framers shared the British view about the limitations to be imposed on any court interpreting the Convention.6  Professor Nicol concludes that most of the framers saw the Convention as something more than merely an insurance policy against dictatorship.

With regard to the question of whether the Convention should not be interpreted purposively, as a "living document," but instead should be interpreted according to the "original intention" of the framers, Professor Nicol points out that the Council of Europe's founding statute, at Article 1, provides that the Council's aim is the maintenance and further realisation of human rights and fundamental freedoms. Nicols also points to the creation of the European Court itself as further proof that a majority of framers believed the European Convention should be a "living instrument," to be interpreted by a court free of democratic pressure.

Nicols examines the actual statements made by various framers in the travaux prepararatoires, and concludes that there was in fact never a consensus to limit the Court to the "original intent" of the framers. In his view, the desire to limit the ECHR to an anti-dictatorship device cannot be considered as representing the general view of the delegates. The negotiators were instead split into two camps with competing ideologies. One camp contended the ECHR should serve only to protect existing rights; the other contended it should be a cross-border Bill of Rights.7 

Sir Nicholas Bratza, a former President of the European Court, forcefully set out the reasons the European Court was right to interpret the Convention in the way it has in a speech given in 2013 and later published by the European Human Rights Law Review. He first set out the "originalist" view that the Convention must be interpreted in a manner consistent with the views of framers in 1950:

". . .(T)he basic problem with this approach seems to me to be that it treats the Convention as if it were a multilateral treaty of a traditional kind, concluded to create the reciprocal exchange of rights and obligations for the mutual benefit of the contracting states themselves. Human Rights Treaties of the kind found in the European or Inter-American systems are indeed of a "very special kind," to use the words of Sir Gerald Fitzmaurice8. But their real particularity lies in the fact that their object and purpose is the protection of the fundamental rights of individual human beings both against the state of which they are nationals and against all other contracting states.. . . Certainly human rights treaties are not Constitutions, but they have much in common, both containing a list of abstract and open-textured fundamental rights and both requiring judicial interpretation to adapt to the constant and often dramatic society changes that have occurred since the instrument was first drafted." 9

The arguments of Lord Sumption, Lord Scott and Lord Hoffman are addressed (and I would contend effectively dismissed) by Professor Martin Loughlin, who points out that their contentions mirror those put forward in the US by (among many others) the late Justice Antonin Scalia. Scalia and his acolytes contended only an "originalist" interpretation of the 1791 Bill of Rights is acceptable.10  Loughlin points out the first difficulty with this: it is impossible to determine the original intention of a score of framers regarding vague (and sometimes inconsistent) phrases in any Bill of Rights. Therefore any supposed advantage in legal certainty is in fact illusory.

Professor Loughlin agrees with Lord Sumption's contention that courts now consider questions that 50 years ago would seem inconceivable. But the decision about the boundaries of the judicial role is itself a "political" decision. Lord Sumption does not set out his own normative views with regard to the ideological underpinnings of the British Constitution.  Lord Sumption's arguments, Loughlin argues, are classic illustrations of what has been called "the jeopardy thesis": that certain reforms and social developments, though ostensibly desirable in principle, are capable of being realised only by incurring unacceptable social costs. The jeopardy thesis is repeatedly heard when constitutional change is afoot: Professor Loughlin points in particular to Dicey's commentaries after the Parliament Act 1911 ("This has destroyed our last effective constitutional safeguard."), as well as legal warnings issued after Labour's social welfare legislation after the second World War  and the administrative state that ensued: ("The new despotism of organised administrative lawlessness.") 

For Loughlin, what underlies Lord Sumption's criticism is this: Lord Sumption has seen the results of a more active judiciary, and he dislikes those results.  Lord Sumption argues that judicial enforcement of civil and political rights undermines and corrodes democracy. As Loughlin points out, Lord Sumption's argument ". . . seems to be much less concerned with democracy than with authority. His claims are best understood as advocating the need to bolster parliamentary authority." But Lord Sumption offers no real remedy. Loughlin puts it like this: "This is the voice of a privileged elite who find intellectual stimulation in dwelling on the evident deficiencies in the functioning of modern constitutional democracies without offering any serious analysis or practical remedy. This is the authentic voice of reaction, one that accompanies strident critique with vague allusions to some earlier mythical age, in which law was the 'golden metwand' and legislation remained the province of the 'upper ten thousand'."  

And of course for a family lawyer, the decision to limit interpretation of the Convention to the original understanding of the framers of the document would mean this: the term "family" would remain static, as the term was interpreted in 1950. Courts would be precluded from interpreting "family life" in Article 8 in a way that might, for example, include homosexual couples. Lord Sumption would of course respond that this is true, but that would not preclude Parliament from considering the claims of those who would be left out of a 1950's understanding of family life. Those claims, in Lord Sumption's view, would no doubt be given due consideration by Parliament and appropriate legislation would be passed.  He would point to the Conservative government's decision to grant homosexual couples the right to marry as evidence that Parliament is able to follow the changing views of the public, and is able to change without the guiding hand of unelected judges. 

To respond to that argument requires a brief attempt to set out what we mean by the term human rights, and how it came to be that the court room during the last half century has become the forum where individuals are able to asset that a government actor has breached those rights.

No history (even a mini-history such as this) of the evolution of human rights is complete without at least a nod toward the still-contentious 18th and 19th century debates about natural rights. The usual suspects must be trotted out, beginning with Thomas Paine's The Rights of Man, Thomas Jefferson's Declaration of Independence and the American Revolution in 1776, the French Revolution of 1783, and continuing on to John Stuart Mill's notions of individual autonomy in his 1859 lengthy essay "On Liberty."  The right to "life, liberty and the pursuit of happiness," enshrined in the American Declaration of Independence, and the rights to "liberty, property, security and the resistance of oppressions," set out in the French Declaration of the Rights of Man 13 years later, have been a source of consternation to conservative critics ever since.  "Natural rights," Edmund Burke argued, imperilled the "organic bonds of personal fealty and mutual personal obligation, cultivated by tradition over the centuries, . . .". Burke was concerned that those bonds would be replaced by ". . .  the much more impersonal, universal, formal, rationalistic, legalistic—and also allegedly more volatile and antagonistic – ones derived from the doctrine of natural rights." 

Mill's book, On Liberty, was published in 1859, and prompted an attack by the barrister and High Court Judge Sir Fitzjames Stephens in 1873, a polemic that perfectly points up the differing approaches of those who believe citizens must have certain rights against a government, and those who believe that government comes before any right, and in fact is there to define and limit any rights enjoyed by its subjects.  Stephen's book, Liberty, Equality, Fraternity (1873), is a hymnal to force. Without compulsion, society breaks apart, according to Stephens. He put it like this: "Parliamentary government is simply a mild and disguised form of compulsion. We agree to try strength by counting heads instead of breaking heads, but the principle is exactly the same. . . The minority gives way not because it is convinced that it is wrong, but because it is convinced that it is a minority." (p70)   As US Federal Court Judge Richard Posner tells us in his usual witty and erudite style, Stephens was in fact the first Neoconservative. Stephens' book, as Judge Posner tells us, serves as an ". . . audacious challenge to Mill. Mill's conception of liberty sets limits on the scope of government. People should be free to do what they want, think what they want, say what they please, worship whom they wish to worship, without government compulsion."11   Mill's focus on liberty is completely at odds with Stephens' focus on force.  Stephens would contend that force is all. Liberty, or the notion of individual rights against the state, is nonsense.  

Stephens agreed with Jeremy Bentham's famous critique of natural rights, a criticism that again resonates in Tory conference speeches in the 21st Century, where ministers call for an end to the influence of the European Convention on United Kingdom law. "Nonsense on stilts" is the term Bentham coined for natural rights, and that continues to get a response from those who believe that minority rights, as Blackstone argued, were fully protected (or as protected as they possibly could be) by the fact that power under the UK Constitution was not exercised by one body.12  The executive was checked by the legislature, the Commons checked by the Lords, and there was an independent judiciary that enforced at the very least a transparent process of "law". There was no need for a document setting out protections for individual citizens against the government, and certainly there is no need today for a document giving to a foreign court the power to create "rights" against the will of Parliament. This was clearly the prevailing view of the senior judiciary in the United Kingdom throughout the 17th, 18th, 19th and the first half of the 20th Century. What changed?

It is right, as Professor Bruce Dickson from Queen's University points out, that the common law indirectly protected human rights, most often in tort law.  A remedy for someone assaulted or falsely imprisoned is a facet of human rights law. When a court orders compensation where someone's property has been damaged or stolen, in one sense that court is validating a human right of the claimant's.13

But it is also right that before the Human Rights Act 1998, the European Commission and the European Court of Human Rights on no less than 17 separate occasions found that the United Kingdom's highest court had failed to protect a protected and fundamental human right. As Professor Dickson points out, in many of those cases the House of Lords avoided the use of human rights language altogether. And of course in 2006, the House of Lords, in the case of Watkins v Secretary of State for the Home Department,14  apparently held that the common law did not recognise a category of rights designated as "constitutional rights."

No legal historian, however, contends that the concept of human rights in the United Kingdom was created by the Council of Europe in 1950.  The common law (certainly at least since the Restoration of Charles II and the Bloodless Revolution in 1688) in one sense is based on the notion that the executive branch of the state can be brought to court (and to justice) by citizen/litigants. The premise of this is the independent judiciary, applying rules of law.

How were human rights protected in the United Kingdom under the common law? 

Civil liberties and human rights were of course not set out in a single constitutional document in Britain, and that absence of a document, A V Dicey famously concluded in 1885, was the "distinguishing virtue" of the British Constitution.  Civil liberties, in Dicey's view, were protected by the rule of law. He argued that three "conceptions" were vital to the notion of a rule of law: 1) No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of the law established in the ordinary legal manner before the ordinary courts of the land. 2) Every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amendable to the jurisdiction of the ordinary courts. 3)  And finally, that the liberties associated with the British Constitution (freedom of assembly and religion; a right to private property) came about because of judicial decisions determining the rights of private persons in particular cases.15  

Laing and Gearty point out, as have others, the obvious motivating factor for Dicey: his fear of (and disdain for) collectivism and democracy.   Dicey was concerned that political authority ". . . can easily be used for the immediate advantage, not of the country but of a class."16   Dicey felt democracy and socialism were incompatible. He felt socialism encouraged voters to reject individual freedom. And of course Dicey's views have prompted legions of critics to point out that his notion of the rule of law in fact really embodied only the views of the liberal landed class as of 1885, and contained nothing more substantial than that. The "rule of law" by these critics' view is nothing but an empty slogan that adds nothing to the debate about whether this action of the government or that action in fact was unjust or unwise. If some action of the government is unfair, why also make the parallel argument that it is a "breach of the law"?

The answer, as E P Thompson reminded us in 1975, is that there is a vital difference between arbitrary power and the rule of law.17  As Thompson put it, the fact that law (at least on occasion) imposed effective restraint upon power's "all-intrusive claims" meant that the rule of law is an unqualified human good.    

Thompson's and, later, Professor Jeffrey Jowell's efforts to answer critics from the left ("The rule of law is nothing but a façade for rule by and for a particular class," as Marx tells us) remain the most cogent arguments in favour of legality as a governing principle. Jowell argues the term "rule of law" really only means that those who exercise power over others must have legal authority for their actions.18  It does not guarantee anything other than that the government should be conducted in accordance with the law. This principle is a precondition of liberty. It is a precondition to the right to political participation. The principle of legality does nothing more than this: if a "right" has been created by law, that right can only be eliminated by law. There must be transparency. The principle of legality offers an important measure of procedural protection, but does not guarantee the substance of the rights themselves. It does not even prescribe a process that must be followed before the right is revoked or qualified.

But it does do this: it requires a government to have legal authority for whatever it does on behalf of those whom it represents.  As Laing and Gearty note, the case of Entick  v Carrington (1765) 19 St Tr 1030, is an early and cogent example of legality in action. In that case, the Court held that the Secretary of State had no authority to issue a warrant to search the home of John Entick for seditious papers, even though the Secretary claimed the search was in the interests of the state and necessary to preserve the state.  While it may be argued that by holding that only a court, not the Secretary, might issue such a warrant, the court was in fact protecting property rights against a trespass by the state rather than limiting the arbitrary power of the state, the effect was the same.

But this common law "revivalism," as Professor Gearty calls it, can easily descend into a refusal to consider what in fact the judiciary's primary concerns were prior to the middle of the 20th Century.  Everything depended on whose freedom was at risk. The common law showed a strong commitment to property rights and to freedom of contract. It was not quite so forceful when hearing claims by those who contended the status quo should be changed. The famous case of Duncan v James19  that came before the High Court in 1936. where labour unions complained that police had unlawfully arrested union members who sought to demonstrate outside labour exchanges, presents a good case in point.   The court flatly rejected the union's contention that the common law protected citizens' right to assemble and make known their grievances. "This case. . . does not even touch that important question," sniffed Lord Ewart.  The court instead believed the case turned on the "right" of the police to prevent a breach of the peace. The police, the common law tells us, also had the "right" to seize materials from radicals whom they regarded as unacceptably subversive, and could intervene and disrupt otherwise peaceful meetings if police disapproved of the purpose of the meeting.  As Gearty puts it, the common law's primary maxim was this: "No to mob rule, unless it is our mob."20 

No history of the evolution of human rights analysis in the United Kingdom is complete without mention of the publication in 1963 of Harry Street's Freedom, the Individual and the Law.21  As Geoffrey Robertson QC tells us in 1990 in  the introduction to the 6th edition of the text (almost entirely re-written and updated by Robertson), when Street first published his text in 1963 Stephen Ward was standing trial at the Old Bailey; two British  reporters had just been gaoled for refusing to disclose their sources to the Vassall spy tribunal; in Beirut MI5 was offering immunity from prosecution to Kim Philby; and Sheffield police had been caught beating suspects with rhino whips. In other words, 1963 was another world, even in 1989. What Street sought to do was set out an authoritative modern account of the legal basis for various interferences with the liberties of British citizens by the British government. As Robertson QC tells us, Street's text ". . . was no smug Dicey, abominating foreign law and lauding a constitution that did not in fact exist: it was the work of a street-wise academic who knew what was in the Emperor's wardrobe and was not afraid to point out to the crowd the need for new clothes."

Street's text and research formed the basis for later work by barristers such as Geoffrey Robertson, Anthony Lester and Edward Fitzgerald, solicitors such as Geoffrey Bindman and Henry Hodge, along with numerous other like-minded reformers in the 60's, 70's and 80's, all of whom sought  to bring cases to the attention of judges (and the public) where it was contended basic human rights (or "civil liberties")  had been breached by police, by MI5, by (in some cases) the courts themselves. Many of the cases involved prisoners, and judges began in the 1980's to create a body of law that might be termed "constitutional" law.22   After 1966, and the acceptance by the UK of an individual right to petition to the European Court of Human Rights , those lawyers began the regular "trips to Strasbourg" to seek to have that supra-national court create an actual body of constitutional rights.

As Robertson pointed out, liberty in Britain in 1989 was a ". . .state of mind rather than a set of legal rules. Unlike most Western democracies, the United Kingdom does not have a constitution embodying written guarantees of personal freedoms. Instead, it relies upon formal procedures and established institutions to protect the individual from oppressive behaviour by those Orwell termed the 'striped-trousered ones who rule'."  Robertson argued in 1989 for the adoption of a British Bill of Rights, or, alternatively, for incorporation into UK law of the European Convention for the Protection of Human Rights. So, too, did scholars such as Ronald Dworkin, who in 1990 wrote a short polemic called A Bill of Rights For Britain. All (or most) of these reformers were left of centre on the political spectrum; they believed that Parliamentary sovereignty, with no effective judicial oversight, often became Parliamentary dictatorship, where minority rights and individual liberties were sacrificed to the will of the majority.

The position of right of centre legal scholars, on the other hand, was perhaps best set out by Lord Hailsham in his 1983 Hamlyn Lectures: "We can claim to live under a system inherently more agreeable than any other that I can personally think of. . . I do not find anything in the essential structure of our institutions or our law, or our sense of continuity with our past, which I would wish to alter." 23

The legal scholar Jeremy Waldron describes the change from 1945 to the present as involving the ". . . upward equalisation of rank." Every human must be accorded the dignity, rank and expectation of respect that was formally given only to nobility.  Waldron describes this as a sort of "levelling up," permitting us to say in 2015 that the Magna Carta of 1215 was a key constitutional document for all, notwithstanding that its "rights" were originally to be enjoyed by only a small number of Barons.24 

Most scholars agree, however, that the evolution of human rights under the common law often found itself reaching end points based on the notion that courts, when deciding particular cases, cannot create duties to enforce liberties. Parliamentary sovereignty under the English common law meant that judges looked primarily (some would say only) to Parliament when determining the parameters of liberty and human rights. The absence of a constitutional document, and the absence of a tradition of judicial enforcement of minority rights against the wishes of Parliament, created a judiciary (and a legal system) where judges did not seek to analyse whether state actors had deprived claimants of their "human rights."

The idea that certain fundamental human rights (the right to life, to liberty, to privacy and family) should trump the will of transient Parliamentary majorities is unlikely to be consigned to history and forgotten. What Lord Sumption is contending is that Parliament should decide, the executive should administer, and judges should be confined to deciding private disputes between private litigants. Unless Theresa May and the Conservative government can rewind the clock to 1945, this is unlikely to happen. 

The pooling of sovereignty by the United Kingdom when joining the Council of Europe and the European Union occurred on two levels—the political level and the judicial level. The decision in 1972-73 to join the European Economic Community meant that Parliament was agreeing to permit European institutions in certain areas that affect all EU members to make decisions that would bind Parliament and UK citizens. This is precisely the same decision made by Parliament in 1950 when it ratified the European Convention, and again in 1966 when Parliament agreed that individual UK citizens could make claims in the European Court of Human Rights, and again in 1998 when Parliament enacted the Human Rights Act 1998. Parliament was agreeing that judicial sovereignty in some areas affecting all European members' interests would be pooled to permit decisions made by a European Court to bind Parliament and citizens of the United Kingdom.

Efforts to unwind the pooling of judicial sovereignty will, I contend, be more difficult than it would appear at first glance. It is one thing to say that the European Court decisions are no longer binding. It will be another to declare that rights citizens enjoyed for half a century are no longer extant. The right to respect for one's family life, in many contexts has become a part of the established law in this jurisdiction. In that sense, it has become a part of the "common law."  The appropriate role of the common law in protecting human rights, contend Professors Masterman and Wheatle, may well be revitalised, at least if the UK Supreme Court's recent decisions in Osborn v Parole Board25 Kennedy v Charity Commission 26, and A v BBC 27 are any indication.28   All three decisions show the Court suggesting that the common law, and not the jurisprudence of the European Court of Human Rights, should be the primary source of legal authority for a domestic court considering an issue of individual rights. Masterman and Wheatle contend that that the notion of rights recognised at common law as being "constitutional" had begun to gain a foothold in the judiciary even before the enactment of the HRA 1998.   The Human Rights Act, in one view, simply stifled further development by common law judges using common law language. They agree with Lord Neuberger's criticism, given in a speech in Australia in 2014, that UK lawyers and judges had been like children with a new toy. "As we became fascinated with the new toy," according to Lord Neuberger, "the old toy, the common law, was left in the cupboard."

Senior Judiciary are clearly listening to the criticism.   But the key difficulty, as Paul Bowen QC and Richard Clayton QC have both effectively argued, is this: Parliamentary sovereignty poses an insuperable obstacle to any real use of the common law to protect individual rights.29 

Enforcement by the judiciary of a human right against the will of the majority is of course anti-democratic. It is in one sense elitist.  No one doubts that Lord Sumption is correct about this.  But the forum provided by the courtroom permits a conversation between the elite and government power, mediated by the judiciary and governed by a constitutional document.  The elite (and no one argues that human rights lawyers and the judges who make up the UK Supreme Court and the European Court of Human Rights are not members of the elite) are seeking in these cases to determine the rights of the dispossessed, those without power—prisoners seeking to vote, unwed mothers seeking to be treated the same as those who are married, refugees seeking not to be deported and parted from their children. That conversation is not determined simply by counting heads, as we do when we elect a Parliament (or have a referendum). It is a debate (or, to be more accurate, a lawsuit), decided by judges applying historic notions of "reasonableness" and "proportionality," and seeking to weigh competing interests to determine whether the government acted "lawfully."  The government often seeks to argue that judges should defer to the will of the majority, and on many occasions judges do just that. But do we believe Parliament should never face judicial scrutiny regarding treatment of powerless minorities? Do we believe it is now the time to end this conversation about human rights that has gone on in front of judges for half a century?

It is also right that members of Parliament are involved in and affected by the human rights claims made on behalf of powerless members of society.  Lawsuits generate controversy and publicity. Politicians cannot help but listen. The response to the claim that Parliament's "creation" of the right of same-sex couples to marry and form life-long partnerships shows there is no need for a Human Rights Act is this: Parliament would not likely have done so without the debate engendered by human rights claims. Human rights law suits do not occur in a vacuum. They have the potential to move the debate.

There are occasions when a court seeking to determine the meaning of a "living document" goes beyond the intention of the framers. But that judge cannot go beyond the document itself. That limits what even the most activist judge can do. But the rights set out in the European Convention cannot be seen merely to reflect what the elite thought in 1950. There must continue to be a conversation about those rights, and that conversation should continue to be held in the court room as well as in Parliament.

In one sense the dispute between Lord Sumption and those who believe human rights should continue to be debated by judges is a continuation of the argument between Mill and Stephens, between freedom and force, between individual autonomy and the competing argument that before any rights are created there must be force, there must be compulsion. Lord Sumption's view is that Parliament creates rights, that Parliament comes before rights. Compulsion comes before autonomy, Mill and Thomas Paine be damned.

The argument continues, and as William Faulkner reminded us, the past is never dead. It's not even past.30 
_______________________

Footnotes:

[1]  Lord Sumption and the Limits of the Law (Bloomsbury 2014).
[2]  De Tocqueville, Democracy in America (?Saunders and Otley; London 1835 and 1840).
[3]  Limits of the Law, supra, p15-27. 
[4]  [2003] UKHL 43, [2004] 1 AC 983, at 1001.
[5]  (1999) 62 MLR 159.
[6]  Nicol, "Original Intent and the European Convention on Human Rights" [2005] Public Law 321.
[7]  The travaux prepararatoires run to eight volumes, all of which are available online in both English and French. The online edition, however, is not the "approved version" of the document. The Inns of Court libraries do not have the paper volumes, but the volumes are available at the Charles Clore Library at the University of London. For the online edition, click here.
[8]  Sir Gerald Fitzmaurice was appointed by the United Kingdom to be a justice of the European Court of Human Rights in 1974. His view was that the European Court should be limited to what the framers of the document allegedly intended, which was that the European Court should always defer to democratically elected legislatures. Sir Gerald's biography reads straight out of central casting for a member of the senior judiciary in the 1970s. He was born on 24 October 1901, the younger son of Vice-Admiral Sir Maurice Swynfen Fitzmaurice and Mabel Gertrude Gray. He received a Bachelor of Laws degree from Gonville and Caius College, Cambridge, after first attending the independent Malvern College. Fitzmaurice became a barrister in 1925 (he was a member of Gray's Inn) and worked for the Foreign Service from 1929.  He was invested as a Companion of the Order of St Michael and St George in 1946. Also that year he was part of the United Kingdom's delegation to the UN Assembly. Fitzmaurice was the UK Counsel to the International Court of Justice at The Hague between 1948 and 1954 and served as the Senior Legal Advisor between 1953 and 1960. In 1954 he was advanced to a Knight Commander of the Order of St Michael and St George. He was made a Queen's Counsel in 1957. In 1960, he was appointed a judge at the International Court of Justice, the main judicial organ of the United Nations, and he held that position until 1973.  He was made a Knight Grand Cross of Order of St Michael and St George in 1960, and the following year became a Bencher of Gray's Inn.  He sat as a senior judge of the International Court of Justice between 1967 and 1973, and became a Judge of the European Court of Human Rights at Strasbourg in 1974.  In those cases where the European Court sought to apply the Convention in ways that went beyond the intentions of those from the United Kingdom who participated in drafting the Convention, Sir Gerald dissented.  Sir Gerald often found himself dissenting.
[9]  See Sir Nicholas Bratza, "Living Instrument or Dead Letter: The Future of the European Convention on Human Rights", [2014] EHLR 116, at 120.
[10] See "Sumption's Assumptions", in Limits of the Law, supra, p27-40. 
[11] See Posner, Overcoming Law (Harvard Univ Press 1995), pp263-270). As the legal scholar Michael Kammen reminds us, "liberty" is a fraught term that is meaningless unless considered in relation to some other quality, such as authority, or property, or justice, or equality. As Edmund Burke pointed out, "liberty inheres in some sensible object." He meant, in the context in which that phrase was used, that the American colonists were not devoted to "liberty" as an abstract concept; they were devoted to liberty according to English ideas, and on English principles. See Michael Kammen, Spheres of Liberty: Changing Perceptions of Liberty in American Culture (1986 Cornell Univ Press). See also F. Selby, ed, Burke's Speeches on American Taxation, on Conciliation with America, and Letter to the Sheriffs of Bristol (1897 London).
[12] Schofield, Pease-Watkin and Blamires: Jeremy Bentham—Rights, Representation, and Reform: Nonsense Upon Stilts and Other Writings on the French Revolution (Oxford 2002); See Burke, Reflections on the Revolution in France; The Writings and Speeches of Edmund Burke (Oxford: Clarendon Press, 1997). See Blackstone's Commentaries on the Laws of England (1765-1769 Oxford—there are numerous editions.
[13] Bruce Dickson, Human Rights and the United Kingdom Supreme Court (Oxford University Press 2013).
[14] [2006] UKHL 17, [2006] 2 AC 395, at 64.
[15] Dicey, Introduction to the study of the law of the Constitution (10th Ed ECS Wade 1959).
[16] See Laing and Gearty, The Struggle for Civil Liberties: Political Freedom and the Rule of Law in Britain, 1914-1945 (Oxford Univ Press 2000).
[17] E P Thompson, Whigs and Hunters (1975 Oxford Univ Press), page 266; As Laing and Gearty note, historians of the left scoffed at Thompson's claims. Representative of those historians was Morton Horowitz, who queried how a man of the left can describe the rule of law as an unqualified human good, primarily ". . . because it prevents power being exercised in a manner that would help create equality."  Horowitz also claimed ". . . that the rule of law in fact promotes substantive inequality by creating a consciousness that separates law from politics, means from ends, processes from outcomes. It enables the shrewd, the calculating, the wealthy to manipulate its forms to their own advantage." See Horowitz, "The Rule of Law an Unqualified Good?" (1977) Yale Law Journal 561; Laing and Gearty, supra, page 11.
[18] See Jeffrey Jowell, The Rule of Law Today, in Jowell and Oliver (eds, The Changing Constitution(3rd ed) (Oxford University Press 1994).
[19] [1936] 1 KB 218, 222. See discussion in Gearty, supra, page 25.
[20] Courts were instrumental, for example, in making certain women should not be given any opportunity to participate in the political process.  See Nairn v University Court of St Andrews (1907) 15 SLT 471, at 473: ("It was a principle of the unwritten constitutional law of the country that men only were entitled to take part in the election of representatives to Parliament.")  The courts also sought to deny to the Labour Party the power to pay its members of Parliament out of union funds. See Amalgamated Society of Railway Servants v Osborne [1910}] AC 1987. It is also right that the common law preserved the "right" of employers to discriminate on the basis of race, and permitted pubs, dance halls and hotels to refuse entry based on race. See the path breaking work by Anthony Lester and Geoffrey Bindman, Race and Law in Britain (Cambridge; Harvard University Press 1972). Parliament, as Lester and Bindman tell us, was far more active in creating "rights" for the dispossessed and the ethnic minority than the common law courts.
[21] Street, Freedom, the Individual and the Law (Penguin Books 1963).
[22] See, for example, Raymond v Honey [1983] 1 AC 1, at 10, where Lord Wilberforce stated that a prisoner retained all his "civil rights" which were not taken away expressly or by necessary implication, and the Prison Act 1952 did not give to prison administrators the right to breach fundamental liberties of prisoners. One of the fundamental liberties was a right to access to courts. See R. v Secretary of the Home Department, ex p. Anderson, [ 1984] QB 778, where the Divisional Court held it was unlawful to impede a prisoner's right to legal advice. See also R v Lord Chancellor Ex p. Witham [1998] QB 575, where Laws J described the statutory presumption that general words cannot take away rights as creating constitutional rights.  See the discussion in Murray Hunt, Using Human Rights Law in the English Courts (Oxford: Hart Publishing 1997). Clayton and Tomlinson set out the following "constitutional" rights found under the common law: a right of access to courts (A-G v Guardian Newspapers [1974] AC 373); a right of free speech (Spicer v Holt [1977] AC 987, at 1013); a right to a fair trial (R v Brown [1994] 1 WLR 1599); a right to a trial by jury (R v Islington North Juvenile Court, ex p Daly [1983] AC 347); and a right to equal protection of the law (Fitzpatrick v Sterling Housing Associaton Ltd [1998] 304, 337, per Ward LJ).
[23] Cited by Robertson, above, p. 13.
[24] See Waldron, "How the Law Protects Liberty" (2012) Cambridge Law Journal 200, at 212.
[25] [2013] UKSC 61.
[26] [2014] UKSC 20.
[27] [2014] UKSC 25.
[28] Masterman and Wheatle, "A Common Law Resurgence in Rights Protection?" [2015] European Human Rights Law Review 57.
[29] See Paul Bowen QC, "Does the renaissance of common law rights mean that the Human Rights Act 1998 is now unnecessary?" [2016] EHRLR 361. In Bowen's view, the answer is no. See Richard Clayton QC, "The empire strikes back: Common law rights and the Human Rights Act" [2015] Public Law 205.
[30] See Faulkner, Requiem for a Nun (Scribners 1950).

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