Lord Jonathan Sumption (BBC)

The Invention of Rights would be a tempting if extreme subtitle to add to the third of the recent Reith Lectures given by Lord Sumption. It is tempting because he makes clear that just such an activity has cone to define the work of one of the most influential courts in the field of human rights, namely that of the European Court of Human Rights in Strasbourg.

This Court, established by international Treaty interprets the European Convention on Human Rights which it has rendered  into something highly “dynamic” as what it calls a “living instrument”. As such, the Convention has become a resource from which the Court by means of a process of extrapolation or analogy has been  able to derive such additional rights as it feels a modern democracy ought to have.  What is notable here is that the reason it has done this is not in order  to discern what is unclear or merely implicit in the Convention, but rather because it feels the need to find and declare rights that are specifically  not in the Convention but has deemed desirable.

This implies that such large issues as become contested in the burgeoning domain of rights are not ultimately to be left for the general body of citizens to decide, or even ultimately legislatures, even if  the views of parliaments are a factor,  but instead to the judiciary.

This gains added impact when considered with  the earlier observation of Lord Sumption that “to  say that rights are inherent in our humanity without law is really no more than rhetoric…unless there is some way of identifying which rights are inherent in our humanity and why”  and  “that is essentially a matter of opinion”. As it turns out, in current practice for those subject to the Court Strasbourg, that means no more or less than the opinion of the Strasbourg Judges.

By way of a comment it is tempting to say that once again all this throws into sharp relief both the importance and the seeming difficulty –in the absence of a requisite and arguably theistic metaphysic– of showing what it is that gives legitimacy to what is claimed for human rights beyond a mere “collective moral sentiment” as Hume would have put it, of the moment.

The following is a summary form of  third Reith lecture of 2019 which can be heard via the BBC

https://www.bbc.co.uk/programmes/m0005msd

A. M-R

“Human rights are where law and politics meet. It can be an unfriendly meeting… What’s the fuss about?”

There is nothing new about human rights apart from the name. A quarter of a millennium ago Sir William Blackstone, called them “natural rights” which he held, belonged to human beings by the immutable laws of nature.” By which was meant that there are some inalienable rights which human beings enjoy, neither by the  largesse of the state, nor by the forbearance of their fellow citizens, but because they are inherent in their humanity. This idea underlies modern human rights theory.

But in fact, “to say that rights are inherent in our humanity without law is really no more than rhetoric…unless there is some way of identifying which rights are inherent in our humanity and why”  and “that is essentially a matter of opinion”.

While, “in  a democracy differences of opinion on what rights ought to exist are resolved politically through legislation” advocates of human rights “have always been suspicious of majorities, which ultimately control democratic legislatures”. Hence, “The idea behind modern international human rights law is that certain fundamental rights should have a higher status than ordinary laws so that they cannot readily be dislodged politically, even with the authority of a democratic legislature.” So, “the object of human rights law is to ensure that they get certain rights, whether they like them or not”.But this makes it “necessary to identify some other source of legitimacy for these rights apart, that is, from the wishes of the population”.

In a more religious age, “Rights were part of the moral law or designed by God”. In a totalitarian state such rights as exist at all, “are ordained by the ruling group in accordance with its ideology”. So what then of a a secular democracy? “What is it that makes rights legitimate if not the decision of representative bodies? What is the source, independent of popular endorsement, which enables us to identify some rights as so fundamental that they must not be removed or limited by political decision?

David Hume, rejected the whole concept of natural law, essentially “because you cannot derive moral principles from abstract reasoning or empirical observation. They derive their legitimacy from collective moral sentiment.”

Rights then, “are the creation of law which is a product of social organisation and is therefore, necessarily, a matter of political choice. So, when we speak of some rights as being inherent in our humanity, we are not really saying anything about the nature of humanity. We are making a personal moral judgment that some rights ought to exist because they are so fundamental to our values, and so widely accepted, as to be above legitimate political debate”… “but the idea only works if the rights in question are truly fundamental and generally accepted. If there is room for reasonable people to disagree about them, then we need a political process to resolve that disagreement. In that case, they cannot be above legitimate political debate except in a totalitarian state.”

There are probably only two categories of right that are truly fundamental and generally accepted.

First, there are rights which are fundamental because without them life is reduced to a crude contest in the deployment of force

So we have:

• rights not to be arbitrarily detained, injured or killed;
• equality before the law and recourse to impartial and independent courts.

Secondly, there are rights without which a community cannot function as a democracy, so there must at least be

• freedom of thought and expression, assembly and association
• the right to participate in fair and regular elections.

Then, in addition,  democracies should confer many more rights by collective political choice “not because they are thought to be inherent in our humanity or derived from some higher law”

In Britain,  at present, the main source of human rights is an international treaty (the European Convention on Human Rights) which however had to be given effect by an Act of parliament so as to ensure that “parliament always has the last word on the contents of our law, even when it originates in a treaty.

However, “dynamic treaties”  (which do not just say what our domestic law shouldbe, but  provide a supranational mechanism for altering and developing itin future.) largely escape parliamentary control. So, “For those who believe that fundamental rights should exist independently of democratic choice, dynamic treaties have an obvious attraction. They create a source of law which is independent of democratic political choices”.

The European Convention on Human Rights is a classic dynamic treaty.

“The HumanRightsAct1998empowers the British Courts to strike down any rule of common law, regulation or government decision which is found to be incompatible with the Human Rights Convention. Even an Act of parliament can be declared incompatible with the convention, which is a signal to parliament to repeal or amend it.”

The HumanRightsActrequires the British Courts to take account of rulings of the European Court of Human Rights, the International Court set up in Strasbourg to interpret the convention. In theory, the British Courts could reject decisions of the Strasbourg Court. In rare cases they do. Occasionally, Strasbourg modifies its position in response but defiance is really not an option if Strasbourg persists. That would put Britain in breach of international law, something which, by longstanding constitutional principle, the domestic courts should avoid if they possibly can.

The Human Rights Convention was not originally designed as a dynamic treaty. But was drafted in the shadow of the Third Reich and “conceived as a partial statement of rights universally regarded as fundamental. No torture, no arbitrary killing, no imprisonment, freedom of thought and expression, due process of law and so on.

It is the Strasbourg Court which has transformed it into a dynamic treaty.

“The doctrine of the Strasbourg Court is that the convention is what it calls “a living instrument”. The court develops it by a process of extrapolation or analogy so as to reflect its own view of what additional rights a modern democracy ought to have.”

It would not need to do this if the additional rights were already there in the treaty and “It only needs to resort to the living instrument doctrine in order to declare rights which are not in the treaty.

While, “Some development of the text is unavoidable when applying an abstract statement of principle to concrete facts”  And “some concepts in the convention, such as the notion of inhuman or degrading treatment, evolve over the time with changes in our collective values.”

“But the Strasbourg Court has gone much further”

Article 8 of the convention is probably the most striking example. It protects “the human right to private and family life, the privacy of the home and personal correspondence.”

While originally designed as a protection against surveillance in totalitarian regimes, “the Strasbourg Court has developed it into what it calls a principle of personal autonomy….so that it potentially covers anything that intrudes upon a person’s autonomy unless the Court considers it to be justified.”

Since, “most laws seek, to some degree, to intrude on personal autonomy” a vast range of issues have been held by the Strasbourg Court to be covered by Article 8 ranging from

• the legal status of illegitimate children,
• immigration and deportation, extradition,
• criminal sentencing, the recording of crime, abortion, artificial insemination,
• homosexuality and same sex unions,
• child abduction,
• the policing of public demonstrations,
• employment and social security rights,
• environmental and planning law, noise abatement,
• eviction for non-payment of rent

—-and a great deal else besides.

And “None of them is to be found in the language of the convention” and “None of them is a natural implication from its terms. None of them has been agreed by the signatory states.

Thus, “They are all extensions of the text which rest on the sole authority of the Judges of the Strasbourg Court. This is, in reality, a form of non-consensual legislation.”

There is no room for complacency about the human rights record in the United Kingdom, —where parliament has twice responded to political violence by authorising internment without trial in peacetime. There may be a case for an international court to act as an external check. But “most of the rights which the Strasbourg Court has added to our law are quite unsuitable for inclusion in any human rights instrument. They are contentious and they are very far from fundamental.”

“This has transformed the convention from an expression of noble values, almost universally shared, into something meaner. It has become a template against which to assess most aspects of the ordinary domestic legal order, including some highly disputable ones…”

“The result has been to devalue the whole notion of universal human rights.”

“Many people will feel that some, at least, of the additional rights invented by the Strasbourg Court ought to exist….But the real question is whether the decision to create them ought to be made by judges.”

Judges exist to apply the law. It is the business of citizens and their representatives to decide what the law ought to be.

Many of the issues thrown up by the convention are not even issues between the state and the individua but between different groups of citizens. “This applies particularly to major social or moral issues, such as abortion, fetal tissue research or medically assisted suicide, about which opinion is often deeply divided”

“If we are going to deal with fundamental human rights in a way which has radical implications of this sort, then we need to have a very clear idea of what a fundamental human right really is… (and) to distinguish a fundamental human right from something which is merely a good idea.”

It is often pointed out that parliament has authorised this way of making law by passing the HumanRightsActand, of course, so it has but not everything that a democratic parliament does is consistent with a democratic constitution. Parliament could abolish elections. It could ban opposition parties. It could forbid criticism of official policy, but while, “Decisions of this kind would have the authority of a democratic parliament but they would hardly be democratic”

The fact that parliament has incorporated the convention into our law does not relieve us from the need to look at its implications for the working of our democracy.

The problem can be most clearly seen in decisions about qualified convention rights.

Most rights deemed to be conferred by the convention are qualified which is to say subject to exceptions for cases where a limitation is judged, to be necessary in a democratic society for some legitimate purpose (such as the prevention of crime, the protection of public health or the economic wellbeing of society.

In the Courts, most arguments about human rights are not about the existence of the rights but about the scope of these exceptions and qualifications.

“This poses, in an acute form, the role of judges in a democracy. Who is to decide what is necessary in a democratic society, or what purposes are legitimate, or what the prevention of crime, or public health, or the economic wellbeing of society requires, or what is a fair balance between the individual and the community? These are all intensely political questions. Yet, the convention reclassifies them as questions of law, thus reforming them from the realm of democratic decision making and referring them instead to national and international courts.”

“Five years ago the Supreme Court (in the United Kingdom) had to deal with one of the most sensitive and controversial moral issues of our time, assisted suicide for terminally ill patients.”

The Strasbourg Court had previously held that the whole issue was culturally and politically too sensitive to permit of a single pan-European answer. Each convention state would therefore have to decide it in accordance with its own values. The essential question for the Supreme Court was who should give Britain’s answer, parliament or the courts?

Parliament had already given Britain’s answer. The SuicideAct1961says that assisting somebody to kill himself is a crime. Over the years, parliament has considered proposals to change the law but has always decided against it.

Yet, five of the nine judges who sat on this appeal thought that the question was ultimately one for the courts. Two of the five would have declared the SuicideActto be incompatible with the convention. The other three decided not to do that but only because it would be premature until after parliament had had an opportunity to consider the matter. One of the three even threatened that unless this was satisfactorily addressed, the courts would do it for them.

“Now, if that threat meant anything, it meant that the courts should be prepared to exercise legislative powers in place of the legislature.

I am not alone in questioning the constitutional proprietary of all of this.”

“The meaning of the SuicideActis a question of law. The question whether the SuicideActis a good thing is not a question of law, it’s a question of moral and political opinion. I was one of the minority who considered that this was entirely a matter for parliament. I thought that on such an issue as this, my own opinion had no greater weight, by virtue of my judicial office, than that of any other citizen. I still think that.”\

“The implicit message of cases like this is that even in a democracy such issues are not in the last analysis to be left to the general body of citizens. Certainly the views of parliament are a factor but how much attention the courts should pay to them is a matter of judicial value judgment.”

(In illustration:)

The “Strasbourg Court…has twice held that the statutory rule in Britain that serving prisoners cannot vote is incompatible with the convention. What was interesting about these decisions was the way in which the Strasbourg Court dealt with the fact that parliament had approved this rule.

In its first decision in 2005 Strasbourg said that parliament cannot have thought properly about the human rights implications. In its second decision in 2008 it couldn’t say that because the House of Commons had by then debated the 2005 decision and reaffirmed its original view. So Strasbourg simply said, “Well, it was a question of law and not one for parliament at all.” There is an obvious irony in the Strasbourg Court’s rejection of parliamentary authority in the name of democracy and yet, that irony brings us close to the heart of the present issue”.

“What we are seeing here are two rival conceptions of democracy.

One is that democracy is a constitutional mechanism for arriving at collective decisions and accommodating dissent. The other is that it is a system of values.”

After the end of the Second World War the democratic label was claimed by the autocratic communist states more or less forcibly established by the Soviet Union in Eastern Europe, such as the German Democratic Republic. What they meant by democracy was a value-based system in which communism was treated as inherently democratic, although not chosen or necessarily supported by the people or even open to meaningful discussion among them.

The values of the Strasbourg Court are, of course, very different from those of the post-war dictatorships of Eastern Europe but they do have this much in common.

“They both employ the concept of democracy as a generalised term of approval for a set of political values. The choice of elected representatives are, on that view, only legitimate within the limits allowed by these values.”

“Democracy is a word with strong emotional resonance. Everyone wants to appropriate it as a label for their own preferred positions…”

“Democracy, in its traditional sense, is a fragile construct. It is extremely vulnerable to the idea that one’s own values are so obviously urgent and right that the means by which one gets them adopted don’t matter. That is one reason why it exists in only a minority of states. Even in those states it is of relatively recent origin and its basic premises are under challenge by the advocates of various value-based systems. One of these is a system of law-based decision making which would entrench a broad range of liberal principles as the constitutional basis of the state. Democratic choice would be impotent to remove or limit them without the authority of courts of law.

Now, this is a model in which many lawyers ardently believe. The essential objection to it is that it is conceptually no different from the claim of communism, fascism, monarchism, Catholicism, Islamism and all the other great isms that have historically claimed a monopoly of legitimate political discourse on the ground that its advocates considered themselves to be obviously right.

But other models are possible. One can believe in rights without wanting to remove them from the democratic arena by placing them under the exclusive jurisdiction of a priestly caste of judges. One can believe that one’s fellow citizens ought to choose liberal values without wanting to impose them.”