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The Times (London) January 16, 2014 Thursday Edition 2; National Edition

The European Court of Human Rights does not undermine democracy

BYLINE: David Pannick, QC SECTION: NEWS; OPINION, COLUMNS; Pg. 53 LENGTH: 823 words In 1927, the political scientist Harold Laski wrote to Justice Holmes of the United States Supreme Court that English Judges were "vaccinated against the dangers of speculation by their careers at the Bar". Recent lectures by Lord Sumption, Lord Mance, Lord Judge and Lord Justice Laws show that today's Judges are leading the debate about our complex relationship with the European Court of Human Rights. The case against the European Court was presented by Lord Sumption in his Sultan Azlan Shah lecture in Malaysia in November. The text of the European Convention is "wholly admirable", but interpretation has created "a large number of new rights" that go "well beyond the language, OBJECTIVE or purpose of the instrument". This is "not always easy to reconcile with the rule of law" and has led to "a significant democratic deficit". In what Lord Mance, a colleague at the Supreme Court, rightly described as an "apocalyptic" conclusion to the lecture, Lord Sumption warned that the decline of a democracy is "subtle" and "insidious", involving a gradual process of "internal decay and mounting indifference". These are very serious allegations, presented with all the rhetorical skills of a formidable advocate. They are also wrong, for two main reasons. The first is that democracy requires the Judiciary to protect the interests of unpopular minorities, which often lack political power, against what John Stuart Mill (and others) called "the tyranny of the MAJORITY". Lord Sumption's response is that he has no OBJECTION to the Strasbourg Court ruling against "real oppression". His complaint is that the European Judges have trespassed "beyond the truly fundamental". But Lord Sumption cannot provide any principle to identify where the border is located. In truth, his concept of "truly

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fundamental" is different from that of the Strasbourg Judges. Many of the great cases decided by the Strasbourg court against the United Kingdom have involved complaints which, 60 years ago, the framers of the convention would not have regarded as "truly fundamental". European Court decisions have led to reforms now uncontroversial in our society. Far from causing an "insidious" decline in our democracy, those Judgments made that democracy stronger. Many of those cases involved the right to private life, the development of which attracts Lord Sumption's especial criticism (though he expresses no view on these topics): for example the removal of the ban on gay people serving in the armed forces, and protecting personal information against intrusion by the State and others. The second point is that far from being unusual, the Judicial process in the European Court is similar to that seen in 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. The Judicial Committee of the Privy Council, composed of Justices of our Supreme Court, 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 austerity of tabulated legalism". Indeed, Lord Sumption's own Judicial work is (rightly) not confined by history or by the language of the text or by concerns about "subtle" undermining of democracy. He gave Judgment for the Supreme Court last year in the Bank Mellat case, concluding that the Treasury restrictions on an Iranian bank were a disproportionate restriction on the right to property. Lord Sumption noted that the case arose "in the area of foreign policy and national security which would once have been regarded as unsuitable for Judicial scrutiny". The words of the Convention did not compel the result at which Lord Sumption arrived. Indeed, politicians and Judges - in the 1950s (like the Court of Appeal whose Judgment Lord Sumption reversed) would not have regarded the case as involving a breach of "truly fundamental" rights. The European Court, like all human institutions, sometimes makes bad decisions. And the relationships between it, Parliament and national courts are problematic. To suggest, however, that the Strasbourg court undermines democracy, especially when it is for Parliament to decide how to respond to its rulings, does less than Justice to Strasbourg or to democracy. The author is a practising barrister at Blackstone Chambers in the Temple, a Fellow of All Souls College, Oxford, and a crossbench peer in the House of Lords 'Its decisions have led to reforms that are now uncontroversial' LOAD-DATE: January 16, 2014 LANGUAGE: ENGLISH PUBLICATION-TYPE: Newspaper JOURNAL-CODE: TIM

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