Jonathan Sumption gave a lecture on 20th November 2013 in Kuala Lumpur entitled ‘The Limits of Law’. In this he set out the theory, increasingly popular in the government, of ‘judicial overreach’ – the idea that Judges have recently being butting their noses into areas that should properly be the preserve of ‘elected politicians’.
He also puts forward what is, in effect, an ‘originalist’ interpretation of the European Convention – the idea that Courts should not develop the rights contained in the ECHR to reflect the changing conditions in the world.
My own view is that it was a strikingly political speech, and potentially an unwise one (he’s going to be met with applications to excuse himself from many future cases). He is also wrong in his analysis for a variety of reasons.
There has been some good commentary on this (see Francis FitzGibbon, Mark Elliott on the Public Law for Everyone and from a blog I’d never read before; Thinking Legally), that cover but there are a few little points I’d like to add to what they say.
What is a legal question?
When talking about the role of judges, Sumption uses as an example the case of R v Lord Chancellor, ep Witham  QB 575. This was a (successful) challenge to new regulations that ended the exemption on court fees for people on Income Support. The Divisional Court struck them down as being a breach of the right of access to the Court. Sumption is critical of this approach.
Sumption says “These are not straightforward questions. But more important than their inherent difficulty is that they are not legal questions. We are back in the realms of politics”, later saying that whilst the judgment was not necessarily wrongly decided, it was wrongly reasoned – “The real question was not about the importance of keeping down court fees, but about the relative importance of doing so, relative, that is, to other possible uses of the money or other possible ways of helping the poor. What the Divisional Court did was reduce the question before it to a binary question. Was it fundamental to the legal order that the poor should be able to afford court fees, Yes or No. By classifying the question in that narrow way, the court turned it into a question of law. Had it confronted the real issue, it might have concluded that it wasn’t a justiciable issue at all.”
This sounds compelling – after all, why should judges be getting involved in political decisions? The problem is that the logic folds in on itself straight away. The idea that issues can be separated into political and legal questions is naive. It is a question of which end of the telescope you are looking at. Just because an issue raises political issues (or allocation of resources) or is of interest to politicians, does not mean that it is therefore a political question and beyond the reach of the courts. Everything is a political question if you look at it the right way.
For a few examples from my area of work – should suspects in the police station have lawyers? Should witnesses have special measures? Should we have jury trials? Should bad character be admitted? The list goes on. All of these deal with allocation of resources and/or are matters of wider policy, yet it is silly to say that it is not also a legal question. If effective access to the courts is not fundamentally a legal issue, and a fundamental legal issue, then what is?
Who’s rights are they anyway?
Sumption’s view on Art 8 seem, quite frankly, bizarre. Or, at least, they sound as if they could have been spoken by an anti-European Tory MP (which may or may not be the same thing). He starts by stating the obvious : ‘The text of Article 8 protects private and family life, the privacy of the home and of personal correspondence. This perfectly straightforward provision was originally devised as a protection against the surveillance state by totalitarian governments’. So far so good.
But he then goes on to say that ‘in the hands of the Strasbourg court it has been extended to cover the legal status of illegitimate children, immigration and deportation, extradition, aspects of criminal sentencing, abortion, homosexuality, assisted suicide, child abduction, the law of landlord and tenant, and a great deal else besides. None of these extensions are warranted by the express language of the Convention, nor in most cases are they necessary implications.’
I won’t go through all the examples he gives, but to say that, for example, immigration decisions don’t come squarely within the language of Art 8, or that they don’t engage ‘truly’ fundamental rights, is surely not correct.
By way of example, I am married to an American. She is lawfully in the UK, but is not an EU national. If tomorrow Theresa May was to announce a new immigration Bill to deport all foreigners (anything seems possible with this Government) I would feel that that does impact pretty severely on my right to a family life. And it’s a pretty fundamental interference. Preservation of families as a family unit seems to fall straight within ‘family life’.
Is Originalism now in fashion?
The debate over whether the Convention is a ‘living instrument’ is not one that has caught off in the UK until recently. I don’t want to get too involved in it, but google ‘originalism’ and you will have a whole world of law (and pseudo-law) to explore.
Francis Fitzibbon QC gives (some of) the reasons why of course the ECHR is a living instrument, but there’s one further point on this. What would Sumption have made of the Horncastle  UKSC 14 judgment? This was the case that upheld the admissibility of hearsay evidence under the Criminal Justice Act 2003. The English drafters of the Convention in 1950 would have been brought up on the strict exclusionary rules of hearsay evidence – they almost certainly would not have approved of the 2003 Act (ditto with the repeal of double jeopardy).
Would Sumption vote to strike down the relevant provisions as being inconsistent with the ‘express language’ as intended by the English lawyers who were present at the time? (Or would he find the conviction of Norris and Dobson for the murder of Stephen Lawrence wrong because of the violation of double jeopardy?). An argument that rights can be limited but not expanded seems an unattractive one (I appreciate that the Convention is a European one, but an ‘English’ interpretation is presumably what we signed up for).
After all, Art 6(3)(d) gives a defendant the right “to examine or have examined witnesses against him” – there doesn’t appear to be any exceptions in that. Surely the CJA breaches that and therefore Horncastle, in allowing the evidence to be admitted, extends the interpretation of Art 6 “well beyond the text which it is charged with applying”? To say that this is an international instrument that can be interpreted to accommodate this seems to be wanting to have your cake and eat it.
Should Judges respect their proper role?
Absolutely. The difficulty is defining what their proper role is (and who decides it). The problem with not having a written constitution is that there is no clear idea what the rules are, who sets them. If there is a real concern, then the answer is not a supine judiciary, but a constitutional debate (and if people vote for a constitution endorsing the supremacy of Parliament, then so be it).
In any event, to say that the ECHR has ushered in a new era of judicial activism is simply incorrect. The famous case on marital rape – R v R  UKHL 12 is a good example. The 1976 definition of rape included the word ‘unlawful’ as an additional element. This was due to the historic situation that a man could not rape his wife. The House of Lords treated ‘unlawful’ as “mere surplusage” and ignored it. This was on the entirely correct basis that the law was wrong and offensive, but that’s not the point. If you want Judges to ‘stay in their box’ and not be activist, then you can’t support the conclusion in R.
It would be interesting to see whether Sumption would disown the House of Lords ruling? It is not merely of historical interest – should anyone now be convicted of historical spousal rape committed before 3rd November 1994 (when s142 Criminal Justice and Public Order Act 1994 came in to force)? However ‘right’ it is, how is this re-writing of the statute not, as Sumption says “a constraint on the democratic process”?
Even someone such as myself, who is entirely comfortable with the idea of a written constitution and the ability of judges to strike down legislation, would balk at the idea of imposing criminal liability where none existed by removing a word of a statute contrary to the express wish of Parliament. And that is precisely why I want the rules written down clearly.
Why is Sumption being ‘radical’?
It’s a question of language. I’m a bit fed up of people warning about the ‘politicisation of the judiciary’, when they actually mean ‘judges making decisions that I don’t like’. The view that she who judges less, judges best may or may not be correct, but it’s a political view. Supporting the status quo, or even regressing as Sumption would like, is not in any way apolitical, it is a very political statement.
And when you consider that almost every democracy in the world has some form of constitutional protection against a legislative body that wishes to do what it wants, it is not just a political statement, it is an extremely radical one.