In his lecture on The Limits of Law given in late November, Lord Sumption rounded on the European Court of Human Rights (ECtHR), much to the delight of the Court’s critics. In the words of his Lordship, the ECtHR has become ‘the international flag-bearer for judge-made fundamental law extending well beyond the text which it is charged with applying’. Since then, Justice Secretary Chris Grayling, former Lord Chief Justice Lord Judge and Lord Justice Laws have added their voices to the chorus of disapproval. Part I of my response has already addressed the allegation that human rights law is fundamentally undemocratic; this concluding article will examine whether Strasbourg is truly an ‘activist’ court, as Lord Sumption contends.
Open to interpretation
The crux of Lord Sumption’s argument is that the ECtHR has disregarded the conventional methods of interpretation, and instead fashioned increasingly radical judgments. He refers to the Vienna Convention on the Law of Treaties 1969, which requires every treaty to be interpreted in accordance with the ordinary meaning to be given to its terms, in light of its object and purpose.  This approach is to be contrasted with the ‘living instrument’ doctrine championed by Strasbourg:
The way that the Strasbourg court expresses this is that it interprets the Convention in the light of the evolving social conceptions common to the democracies of Europe so as to keep it up to date. Put like that, it sounds innocuous and indeed desirable. However, what it means in practice is that the Strasbourg court develops the Convention by a process of extrapolation or analogy so as to reflect its own view of what rights are required in a modern democracy.
The result, he argues, is that some decisions go far beyond what the language, object, and purpose of the European Convention on Human Rights permit. The expanding scope of Article 8 is cited as one such example –
This perfectly straightforward provision was originally devised as a protection against the surveillance state by totalitarian governments. However, 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 as well as a great deal else . None of these extensions are warranted by the express language of the Convention, nor; in most cases, are they necessary implications.
As a consequence, Lord Sumption believes that the Convention, originally intended as a bulwark against tyranny, has been manipulated into a template for domestic legal orders at the cost of national sovereignty and democratic participation. Is his accusation of judicial lawmaking warranted? After all, US Supreme Court Justice Anthony Kennedy once quipped that ‘an activist court is a court which makes a decision you don’t like’. 
On the contrary, case law demonstrates a more cautious, deliberative method of interpretation than Lord Sumption suggests. The Court pays heed to the 1969 Vienna Convention, focussing on the ECHR’s object and purpose as evidenced in its preamble as well as the literal meaning of its text, occasionally comparing the equally authentic French and English versions to resolve any ambiguities.  Nor are Lord Sumption’s examples of supposed overreach in relation to Article 8 particularly convincing. Consider the text of Article 8(1):
Everyone has the right to respect for his private and family life, his home and his correspondence.
Firstly, the notion of ‘respect for…private and family life’ is a broadly worded principle, going far beyond the guarantee against ‘unreasonable searches and seizures’ in the Fourth Amendment to the US Constitution or the similar provision in Article 13 of the German Basic Law. The framers of the ECHR could have chosen narrower, more exhaustive wording, but ultimately rejected this in favour of stating a broad principle modelled on the Universal Declaration of Human Rights and allowing judicial interpretation to flesh out the scope of that right. It is therefore hardly a stretch to claim that incarcerating, evicting or deporting someone might interfere with their privacy or family life.
Secondly, Article 8 states unambiguously that ‘[e]veryone’ has the right to respect for his private and family life; self-evidently, ‘everyone’ includes homosexuals, illegitimate children and foreign nationals. Is it really accurate then to claim that Article 8 has been ‘extended’ to cover those groups, as Lord Sumption asserts? On the contrary, the ECtHR has simply applied the ordinary meaning of the text of Article 8.
Leading the way or following the crowd?
Furthermore, Lord Sumption believes that, whilst ‘truly fundamental’ rights ought to be judicially protected, once ‘one leaves the realm of consensus’, such issues are best resolved politically, not by the courts. Yet this view is not too far from that of the ECtHR, which has often showed surprising judicial restraint. It was not until 1981 that the Court first declared a blanket ban on homosexual sex as incompatible with the Convention – 24 years after such behaviour was legalised in England, 49 years after it was legalised in Poland, and 190 years after it was legalised in France. Indeed, only four out of twenty parties to the Convention still maintained a criminal ban on homosexuality at the time.  Similarly, whilst the 2013 decision in Vinter v UK (App No 66069/09) – which held that it was inhuman and degrading to imprison an offender with no hope of release – attracted sound and fury from the government and tabloids, it must be noted that all except two jurisdictions in the 47-strong Council of Europe had already abolished the irreducible life sentence in practice.  Domestic constitutional courts had already struck down whole life sentences in several states as early as 1978.  It might be wondered therefore whether it was the UK Home Office rather than Strasbourg which was more out-of-touch.
By contrast, where it is impossible to discern a European consensus or near-consensus on a given policy, the Court has often been reluctant to challenge national laws. Whilst Lord Sumption lists rulings on assisted suicide as an example of Strasbourg’s expansionist tendencies, the Court declined in Pretty v UK  35 EHRR 1 and Haas v Switzerland  53 EHRR 33 to support a right to die. In fact, it was the British House of Lords in R (on the application of Purdy) v Director of Public Prosecutions  1 AC 345 which held that the DPP’s failure to publish guidance on prosecutions violated Article 8. In that case, Lord Sumption’s broadside is best directed against his colleagues in the Supreme Court and not the judges sitting in Strasbourg.
The ECtHR has been equally conservative in abortion cases, holding in Vo v France  10 EHRR 12 that in the absence of a scientific or philosophical consensus on the beginning of life, it fell to each state to determine the level of protection to be granted to the foetus. In A, B and C v Ireland  53 EHRR 11 it stated that the Convention did not confer a right to an abortion, although Ireland’s failure to implement the Supreme Court judgment in X v Attorney General  1 IR 1 led to a breach of Article 8. As a result, more than 40 years on since the US Supreme Court proclaimed a right to choose in Roe v Wade  410 US 113, there is still no European equivalent. On matters of acute controversy and where it is impossible to discern an international consensus or at least a substantial majority position, the Court typically affords states a wide margin of appreciation.
The ECtHR as a court
Contrary to Lord Sumption’s characterisation, the ECtHR does not therefore emerge as a particularly activist or ‘lawmaking’ court by comparison with national constitutional courts. Rather, the Court is relatively content to let national courts lead the way on issues such as abortion, gay rights and prisoner rights, and to follow these precedents only once they are firmly established in a majority of contracting states. Furthermore, despite his concerns over the ‘living instrument’ school of interpretation, many of the decisions which Lord Sumption impugns can actually be explained as examples of a conventional textualist approach to interpretation.
Admittedly, some decisions of the ECtHR seem to push the boundaries of interpretation. For instance, Al-Saadoon v UK  ECHR 282 (in which Strasbourg condemned the death penalty as a violation of the Convention) is difficult to reconcile with the text of the treaty or general rules of international law. However, there are as many, if not more, decisions where a more ‘activist’ approach may have been warranted, as in the Court’s disappointingly timid defences of free speech in Otto-Preminger-Institut v Austria  ECHR 26, PETA Deutschland v Germany  ECHR 1888 and Delfi AS v Estonia (App No 64569/09). No court can hope to please everyone with each of its judgments, and this is particularly true of a court whose jurisdiction covers 47 states and 800 million people. This should not detract from the Court’s vital work in protecting fundamental freedoms across Europe. The 1969 Convention does not have retroactive effect and so is not strictly applicable to the ECHR, which came into effect in 1953. However, it is evidence of customary international law relating to treaty interpretation.
 “Justice Kennedy: Senators Focus on Short-Term”, CBS News (14 May 2010)
 Golder v UK (1979-80) 1 EHRR 524, Brogan v UK (1989) 11 EHRR 117 and Sunday Times v UK (1992) 14 EHRR 229 are good examples of the ECtHR’s approach to interpretation.
 D Ottoson, “LGBT World Legal Wrap Up Survey” (November 2006)
 Vinter v UK  ECHR 61   BVerfGE 45, 187