Former Supreme Court Justice and anti-lockdown legend Jonathan Sumption has made the case for leaving the European Convention on Human Rights in the Spectator – all the more remarkable as a Remainer on Brexit. Here’s an excerpt.
No responsible critic of modern international human rights law proposes to do away with fundamental rights. The case is that the convention should be replaced with a domestic code of basic rights which would look very like it, with one important exception: it would not be subject to the jurisdiction of the European Court of Human Rights (ECHR) in Strasbourg.
That exception is important because the real problem is not the convention but the Strasbourg court. Under Article 32 of the convention, the ECHR is the sole judge of its own jurisdiction. It can and does help itself to whatever additional powers and jurisdictions it likes.
Let us take one or two examples. The first Article of the convention limits its scope to the territorial jurisdictions of state parties. This accords with the principle of territoriality, which is one of the building blocks of international law. Yet in 2011 the court suddenly reversed its own previous decisions on the point and claimed jurisdiction over British military operations overseas in places such as Iraq and Afghanistan. At one point it created havoc by ruling that there was no right to detain captured Taliban fighters as prisoners of war without complying with regulations designed for policemen turning in pickpockets at European police stations.
To take another controversial example, the convention provides that state parties are bound only by the final decision of the court in cases brought against them, but the ECHR has claimed the right to impose binding interim orders on state parties before the arguments have even been heard. It recently exercised this power to stop the first flights to Rwanda.
The European Convention on Human Rights is a treaty. The ordinary rule of international law governing the interpretation of treaties is set out in another convention agreed in 1969 under the auspices of the United Nations by almost every country in the world. It provides that treaties are to be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. But in 1978 the Strasbourg judges proclaimed what they called the “living instrument doctrine”. According to this, the court claims the right to develop the convention by recognising new rights thought to be in the spirit of the original treaty although never envisaged in it.
Thus, the notorious Article 8, which ostensibly protects private and family life against the intrusions of the surveillance state, has been interpreted by the ECHR as extending to anything that intrudes upon an individual’s personal autonomy. Since most laws do that, the result is to give the court the power to review the whole range of domestic law. Examples over the past half-century have included immigration and deportation, extradition, criminal sentencing, the recording of crime, abortion, artificial insemination, same-sex relationships, child abduction, the policing of public demonstrations, employment and social security rights, legal aid, planning and environmental law, noise abatement, eviction for non-payment of rent and much else besides.
In the process, the ECHR has devalued the whole concept of human rights. It has transformed the convention from a noble body of truly fundamental principles, almost universally shared, into something at once intrusive and banal. It has become a template against which to assess most aspects of the ordinary domestic legal order on principles which are highly contentious and far from fundamental.
Worth reading in full.