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The Limits of Law (Part I): Are the Courts Undermining Democracy?

The Limits of Law (Part I): Are the Courts Undermining Democracy?

Judicial lectures are rarely journalistic dynamite, but the 27th Sultan Azlan Shah Lecture by Lord Sumption caught the attention of several headline-writers. ‘Judge warns Human Rights Court is dictating law like East Germany‘ thundered the Daily Mail in its coverage of the lecture, given before an audience in Kuala Lumpur on 20th November 2013. Lord Sumption’s condemnation of the European Court of Human Rights (ECtHR) echoes much of the criticism voiced by the right-wing press and the present government: namely, that the Court has appropriated the legislative role of Parliament, that it goes far beyond the text of the Convention, and above all, that it undermines the democratic process. It is, however, a criticism which is misplaced, being based on a misunderstanding which conflates democracy with mere majoritarianism.

The Case Against Strasbourg

Lord Sumption’s lecture, entitled ‘The Limits of Law‘, is a defence of the political process and an attack on what he calls the “judicial resolution of major policy issues”. In his view, the courts are increasingly ruling on matters of policy which are best left to Parliament. This trend is especially pronounced in the area of human rights law, and in particular the European Convention on Human Rights (ECHR). Human rights claims, he argues, are not so much claims against the state as claims against the community, and elected representatives are best placed to balance the interests and values of competing groups in that community. By contrast, courts depend only on the evidence and arguments put before them by the parties and so are less concerned with the wider consequences of their decisions, such as when this involves allocating scarce resources. They are therefore less likely to arrive at the “right” answer than the legislature.

Moreover, Lord Sumption argues that whilst party politics is often seen as a dirty business, the U-turns and fudges for which it is frequently reproached are in fact strengths, not weaknesses. They allow parties to respond to shifting public opinion and reach compromises on highly polarised issues:

The essential function of politics in a democracy, is to reconcile inconsistent interests and opinions, by producing a result which it may be that few people would have chosen as their preferred option, but which the majority can live with.

The resulting compromises may not seem principled or ‘intellectually pure’, but are far more likely to enjoy public acceptance than any judicially mandated conclusion.

The expansion of the courts’ dominion over policy issues best decided by politicians is therefore an alarming and undemocratic trend, in Lord Sumption’s opinion. The ECHR and Human Rights Act 1998 are singled out for blame for essentially outsourcing Parliament’s legislative role to judges, allowing them to create new law. By reaching decisions for which there is no popular mandate, the Strasbourg court can claim to be democratic ‘only in the sense that the old German Democratic Republic was democratic’ – a comparison which was eagerly lapped up by some journalists. Lord Sumption ends with a stark warning: if courts continue to undermine the democratic process in this way, he foresees internal decay, political apathy, and ultimately the decline of democracy.
In defence of human rights

Lord Sumption’s emotional, even hyperbolic, rhetoric was undoubtedly music to the ears of conservative critics of the ECtHR, who have often derided it as undemocratic and unaccountable. But to label the courts as undemocratic simply because their judges are not directly elected or because they may overturn legislation passed by an elected body betrays an erroneously narrow definition of ‘democracy’. [1]

Those who argue in favour of a more deferential judiciary sometimes appear to conflate democracy with majority rule: critics of Strasbourg’s decision on prisoner voting in Hirst (No 2) [2005] ECHR 681, including Lord Sumption, argue that a majority of the public and MPs oppose relaxing the present ban. Yet the fact that Parliament may pass a law disenfranchising prisoners does not make it democratic, as Lord Sumption must acknowledge. After all, in response to the argument that a democratically elected Parliament passed the Human Rights Act 1998, he notes:

The suggestion that this is democratic simply confuses popular sovereignty with democracy…A democratic Parliament may abolish elections or exclude the opposition or appoint a dictator. But that would not make it democratic.

Democracy must mean more than simply the representation of the desires of the majority. Indeed, our parliamentary system cannot even be said to represent the majority: in 2005, Labour won 57% of parliamentary seats, despite obtaining the votes of under 22% of the electorate (or under 16% of the total population). In practice, no more than a plurality ever votes for the winning party. By contrast, if democracy really is ‘rule of the people’, then the rights and interests of all – not just a majority or plurality – must be represented. [2]

Lord Sumption provides a robust defence of the political process, but for balance its downsides should be included as well. The system may work well enough for the majority, but minorities who lack the numerical strength, connections or influence to sway legislation in their favour may find themselves at the mercy of that majority. This problem is aggravated by the UK’s first-past-the-post system. Any reading of decisions under the ECHR reveals that human rights laws work not just for those like Lord Sumption, but also for individuals and minorities who lack the same public pulpit – asylum seekers, immigrants, disabled people, children, the elderly, the mentally ill, homosexuals and lesbians, transgender people, ethnic or religious minorities, suspected criminals, and yes, prisoners. Rights violations against such minorities may be tolerated or even approved by the majority; standing up for their rights may lead to a politician being labelled as a “soft touch” and even losing votes. Some among those minorities – such as prisoners, minors and the mentally ill – are disenfranchised from the electoral process altogether. Where their rights are not upheld by elected representatives, their only choice lies in vindicating those rights through the third branch of government: the judiciary.

Indeed, Lord Sumption is forced to concede this point later in his lecture –

I think that most people would recognise that there must be some constraints on the democratic process in the interests of protecting politically vulnerable minorities from oppression and entrenching a limited number of rights that the consensus of our societies recognises as truly fundamental.

At the same time, however, he adds that the Convention rights, as interpreted in Strasbourg, go beyond the ‘truly fundamental’ and safeguarding against ‘real oppression’. He states that the ECtHR has expanded the scope of the Convention beyond its language, object and purpose, citing the interpretation of Article 8 to protect inter alia homosexuals, illegitimate children and tenants facing eviction as examples. Whether the ECtHR can really be characterised as an activist court is a question for another time (see the concluding part of this piece, ‘The Limits of Law, Part II: Is Strasbourg Manipulating the ECHR?’). All that needs to be noted at this point is that Lord Sumption is not likely to be at risk of imprisonment for his sexual orientation, discrimination because of the circumstances of his birth or homelessness due to eviction. If he were, he might take a different view on what constitutes ‘real’ oppression.

Conclusion

The observations in ‘The Limits of Law’ on the advantages of political decision-making, as well as remarks on the worrying proliferation of new laws, provide much food for thought. It is a shame therefore that the lecture repeated the wearingly familiar refrain that judicial decisions on human rights are ‘undemocratic’, playing into the hands of those who would weaken domestic and international protection for individual liberties. The hostility to Strasbourg felt in Britain may be in part explained by our reliance on the doctrine of parliamentary sovereignty, whereas voters in other jurisdictions are accustomed to the courts striking down legislation. True, human rights judgments may raise policy questions – but then there is barely an area of law which does not; decisions on employers’ liability, unfair contract terms or the limits of self-defence may entail equally significant consequences or attract equal controversy. Judges are nevertheless fulfilling their constitutional role in answering the questions entrusted to them, not usurping Parliament’s role.

It would be a mistake therefore to equate democracy with unrestrained majority rule. A true democracy requires protection for minorities and their rights, and it is this which distinguishes liberal democracy from tyranny by majority. Courts willing to protect human rights are as fundamental a part of the democratic process as the ballot box.

[1] Under Article 22 ECHR, judges of the ECtHR are elected by the Parliamentary Assembly of the Council of Europe. The Assembly is composed of parliamentarians from each state party.
[2] See e.g. JS Mill, Considerations on Representative Government (1861) ch VII

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