Is Lord Sumption Right? Is Remedial Legislation the Only Way to Deal With Social Questions? Euro Rights Blog by Richard Edwards.
In his widely reported lecture ‘The Limits of Law‘ Lord Sumption JSC made a number of interesting and thought provoking points. Too many to be dealt with adequately within a blog. Notwithstanding this, the essence of Lord Sumption’s thesis is worth a quick comment because on closer examination it is unconvincing and based on a incomplete survey of relevant authority.
The kernel of Lord Sumption’s argument is that a political democracy offers a better way of resolving questions of social policy. Moreover, British political democracy is being undermined by the encroachment of judges into areas of social policy through the use of constitutional guarantees. Instrumental in this process is the European Court which has created a ‘significant democratic deficit’ through a distorted application of the ECHR that ‘goes well beyond interpretation, and well beyond the language, object or purpose of instrument.’ (Transcript, p 9 and p 8) Lord Sumption suggests that the legislature has an important role to play in this context. His Lordship cites two examples of how the political process and Parliament enacted important social reforms, namely the Abortion Act 1967 and Sexual Offences Act 1967 (SOA) as ‘paradigm cases of how the political process ought to work.’ (Transcript, p 13)
However, while the process of recognising homosexual rights in the UK began with the SOA Act this was not the whole story. Unsurprisingly, missing from Lord Sumption’s text was any mention of the role played by the European Court. His Lordship’s tendentious account failed to mention the judgment of the Court in Dudgeon v UK  ECHR 7525/76 . Dudgeon was, of course, a resident of Northern Ireland and thus did not benefit from the provisions of the SOA which did not extend there. Dudgeon, therefore, lived his life with the constant threat of prosecution hanging over him should he risk expressing his sexuality. Yet even after the resumption of direct rule from Westminster during the Troubles, there was no change in Northern Irish law. Indeed, when a proposal by London to change law was made Northern Ireland was treated to the sight of all sides of that bitterly divided community in rare agreement. This is, of course, a textbook example of how politics manifestly failed to protect a discrete and insular minority with little or no political voice. The Westminster government deferred to the first degree bigotry of the vociferous majority. Fortunately, for Dudgeon the ECHR offered a means of redressing this manifest injustice. Subsequently the equalisation of the age of consent came only after further adverse findings against the UK in Strasbourg (Sutherland v UK  ECHR 25186/94).
In upholding Dudgeon’s complaint as a violation of Article 8 ECHR (right to a private life) the European Court employed an interpretative tool that is seen by Lord Sumption as a ramp for judicial legislation (Transcript, p 11), namely the living instrument doctrine. This doctrine is not a uniquely European one (Edwards v AG Canada (The Persons Case)  AC 124) but has attracted the ire of many conservative commentators. The Convention, we are told, is being interpreted under this doctrine in ways that the Drafters would find unimaginable. The implication is that the social attitudes prevalent at the time of adoption should inform the interpretation of the ECHR. Originalism, as it is called in the United States, has some virtue. But taken to extremes adhering to the original intent of the framers would freeze the ECHR in amber. The living instrument doctrine, by contrast, allows the judiciary to keep pace with social developments and to remain relevant to contemporary society. Thus as the European Court noted in Dudgeon:
‘compared with the era when that legislation was enacted, there is now a better understanding, and in consequence an increased tolerance, of homosexual behaviour to the extent that in the great majority of the member States of the Council of Europe it is no longer considered to be necessary or appropriate to treat homosexual practices of the kind now in question as in themselves a matter to which the sanctions of the criminal law should be applied; the Court cannot overlook the marked changes which have occurred in this regard in the domestic law of the member States.’
None the less it must be said there are areas where the European Court has deferred to national political sensibilities for too long when it should have applied the living instrument doctrine more vigorously. The long absence of legal recognition for transsexuals is a case in point. (Compare Cossey v UK  ECHR 10843/84 and Goodwin v UK  ECHR 28957/95). Without the ECHR this minority would no doubt still be waiting for legal recognition probably from a private members bill, for it is often forgotten that the Sexual Offences Act was not governmental measure at all. Politicians rarely, if ever, worry about discrete and insular minorities. There are, of course, no votes from such constituencies.