On what authority do we create “a rights based society”? Is everything we call rights, actually rights or just preferences? Who arbitrates between competing rights? In what way are rights superior to ordinary law? These are basic questions which lie behind the claim often made in Northern Ireland that all rights are beyond legitimate dispute. They also lie at the heart of this year’s series of BBC Reith Lectures being given by Jonathan Sumption, a recently retired Supreme Court Justice who was appointed straight from the Bar. Sumption accuses the courts especially the European Court of Human Rights of “mission creep,” of creating too many rights which are really matters of opinion better left to politics.
His series of five lectures entitled the Law and the Decline of Politics makes an unfashionable case for politicians and parliaments. It is based on support for democracy as the source of authority rather than the abstraction that is human rights. The Law enforces rights and is necessary but undemocratic . Legitimacy finally resides in politics but rights protected by the courts are necessary protection against abuse by a democratic majority. The Brexit crisis has deepened the already existing loss of confidence in Westminster and the whole UK constitution. But the system is robust enough to come through basically unaltered, provided many more people take part in the political process. The system he refers to is representative democracy.
Sumption believes that the new struggle in the US over human rights centring on abortion is all the more intense because the rights ultimately enshrined in the landmark judgment of Roe v Wade in 1973 would be less vulnerable to attack today if they had been passed by votes in Congress and state legislatures. He will go on to reject the idea of a written or codified constitution for the UK on the grounds that it would give too much power to the courts.
It’s a great pity that Sumption didn’t give a lecture with Q&A on rights and democracy in Belfast. Northern Ireland is the ideal test bed for the subject. His argument is counterintuitive to the prevailing rights activism in the province. Rights perceived as unjustly denied, the subject of bitter dispute leading to the collapse of the local legislature; a rights culture developed because the very legitimacy of the state is not fully accepted nor its parliament trusted or accepted ; law propounded by the ECHR rather than the domestic courts often preferred; an international agreement between states regarded as basic law; the clash of the direct democracy of referendums on leaving the EU and a border poll with the representative democracy of Parliament and a power sharing Stormont.
Where lies the fount of authority?
While Sumption may be regarded a small c conservative vis a vis a rights culture, his case for a stronger participatory democracy cannot be written off as reactionary. But what happens if the political process does not revive and Northern Ireland fails to settle down as a complex democracy for a diverse community?
“To say that rights are inherent in our humanity without law is really no more than rhetoric. It doesn’t get us anywhere unless there is some way of identifying which rights are inherent in our humanity and why, and that is essentially a matter of opinion. In a democracy differences of opinion on what rights ought to exist are resolved politically through legislation but advocates of human rights have always been suspicious of majorities, which ultimately control democratic legislatures..
Almost all of us believe that there are some rights in that category 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.
They include 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. All of these things have been held to be encompassed in the protection of private and family life. None of them is to be found in the language of the convention. None of them is a natural implication from its terms. None of them has been agreed by the signatory states. 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
I’m not complacent about our human rights record in the United Kingdom. We have a strong libertarian tradition but we have done some things which are contrary to our own traditions and morally and politically indefensible. In my lifetime, parliament has twice responded to political violence by authorising internment without trial in peacetime. So I have no problem with the idea of 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, and 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. I think so myself. But the real question is whether the decision to create them ought to be made by judges.
…the only alternative to a political resolution of our difference is to invite the judges to legislate. The main problem about human rights law is that it does this too readily. It transforms controversial political issues into questions of law for the Courts. In this way it takes critical decision making powers out of the political process. Since that process is the only method by which the population at large is able to engage, however indirectly, in the shaping of law, this is, I think, a problem.
ANITA ANAND: Jonathan, thank you very much. Clearly there are failings in the ECHR in your mind. Would you go as far as say, “Right, we should leave. Pack our bags, we’re off.”
JONATHAN SUMPTION: I think a much better solution would be a change of heart among both the domestic judiciary and the Strasbourg judiciary about how far it is legitimate to go in differing from democratic institutions. So, that is the solution that I would like to see, and there are some signs that this may be beginning but, ultimately, if there is no significant change, yes, I would withdraw from the Human Rights Convention. I hope that won’t be necessary.”
Sumption doesn’t discuss the political upheaval, even the constitutional crisis, that quitting the European Convention would cause. It would encounter fierce opposition in both parts of Ireland, on the grounds of a fundamental breach of the GFA. This is an important reason why Conservatives since 2010 have ducked a confrontation over replacing the Human Rights Act 1998 which domesticated the ECHR, with a British Bill intended to reduce the influence of Strasbourg.
In his second Reith lecture In Praise of Politics he refers to the impact of the Brexit Referendum on politics and comes out against referendums as such in the Q&A in answer to the chair Anita Anand.
ANITA ANAND: But parliament decided on a referendum when it came to Brexit….
JONATHAN SUMPTION : Parliament can do many things that are unwise and that are – and that are – and that are inconsistent with the way that democracies ought to work. I am certainly not suggesting that the referendum was unlawful, I am simply suggesting that it was extremely unwise and that the last three years are an illustration of quite a lot of the reasons why.
ANITA ANAND: Okay, you’re not a fan. I get that.
JONATHAN SUMPTION: I’m not a fan of referendums, full stop.
ANITA ANAND: Okay. So, well, okay, well that answers the second thing. To get us out of this mess, do we need a second referendum?
JONATHAN SUMPTION: Well, I don’t think we should have had the first. … but having had the first, it may well be that the only way that we can get out of the mess created by the first, is to have another one but the moral is not to have as many referendums as possible, the moral is to have none at all.
Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London