Thursday, 16 January 2014

"The European Court of Human Rights does not undermine democracy", said Lord Pannick QC

Writing in The Times (16th January 2014) (£ wall) - Lord Pannick QC argues that The European Court of Human Rights (the court) does not undermine democracy.  Lord Pannick's view follows recent lectures by senior members of the English judiciary which have raised questions about the relationship with the court - see Lord Sumption, Lord Judge, Lord Justice Laws.  Some counterbalancing argument is to be found in lectures/speeches by Lady Hale and Lord Mance.

Lord Sumption warned that the "wholly admirable" text of the Convention has been interpreted in ways leading to a significant democratic deficit.  Pannick argues that Sumption is wrong for two main reasons.

First: Democracy requires the judiciary to protect the interests of unpopular minorities which often lack political power.  According to Sumption, the court has trespassed beyond the truly fundamental but he did not offer any principle to identify where the border of truly fundamental is located. As Pannick points out, decisions of the court have not caused an insidious decline in our democracy and many judgments have made democracy stronger.

Secondly: the judicial process at Strasbourg is not unusual.  It is a similar approach to that adopted by constitutional and human rights courts throughout the developed legal world.  "Broad concepts such as 'private life' and 'degrading treatment' are interpreted and applied by each new generation of judges to address contemporary concerns.  Courts do not allow a charter of rights to ossify, any more than today's theatre directors, actors and audiences interpret the text of Shakespeare's King Lear as if they were living in the 17th century."  Pannick continued: "The Judicial Committee of the Privy Council, composed [mainly] of Justices of the Supreme Court of the UK, is one of the many courts performing this function.  For the past 50 years it has given a contemporary interpretation to the fundamental rights written into the constitutions of Commonwealth nations.  In a 1979 judgment, Lord Wilberforce criticised the Sumptions of his day for promoting the legal austerity of tabulated legalism".

(Note: In several Privy Council cases, judges such as Lords Wilberforce and Diplock recommended a generous approach to the interpretation or application of broad-textured human rights declarations.  The case referred to by Lord Pannick was the Privy Council decision in Minister of Home Affairs v Fisher [1980] AC 319 where their Lordships held that the Bermuda Constitution should receive a generous interpretation).

Whilst the European Court, like all human institutions, sometimes makes bad decisions - (Pannick offered no example) - it was wrong to suggest that the court is undermining democracy.  This is particularly so where, as in the UK, it is for Parliament to decide how to respond to its rulings.

The Convention binds States by those final judgments to which they are a party.  In domestic law, the Human Rights Act 1998 enables courts in the UK to declare that a statutory provision is incompatible with the Convention but this does NOT strike down the legislation.  It remains in force in domestic law unless and until Parliament amends the law.

For essentially political reasons, there are some judgments disliked at Westminster (prisoner voting and reviews of whole life terms are examples).  Even if such cases are ones in which Homer nodded, they are side winds and should not be permitted to destroy the system of protection offered to the citizen by the convention.  

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