Now is a dangerous time to roll back judicial power, the vice president of the European Court of Human Rights has said in a public rebuff to Lord Sumption's high profile criticism of 'law's expanding empire'.
Robert Spano, vice president of the Strasbourg court, inaugurated the Bonavero Institute's annual human rights lecture last week with a challenge to what he called the 'more-politics-less law' thesis set out in Lord Sumption's BBC Reith Lectures and book Trials of the State - Law and the Decline of Politics. Such a view 'seems to me an overly idealised view of politics' Spano said.
Meanwhile, Sumption's description of judicial processes in human rights cases 'is to some extent misconceived'.
Spano rebutted Lord Sumption's assertion that the Strasbourg court had ‘invented rights’ and 'interfered with national political processes in a manner which undermines democracy'. Sumption's criticism of the creeping scope of the Article 8 right to family and private life was itself a process of extrapolation, Spano said.
The Icelandic judge stressed that he was not equipped to comment on the UK political or legal system. But, with 'nationalism, tribalism, dislocation, fears of social change and the distrust of outsiders' on the rise, he asked: 'Is this really the time in European history to place our bet on more politics and less law? To entrust our destiny to the existence of good faith in the political process and argue in favour of limiting the review powers of independent and impartial judges?'
'With respect. Lord Sumption’s more politics-less-law thesis manifests it seems to me an overly idealised view of politics, a view removed from the realities of every day hardships which, when they engender disputes, require resolution by independent and impartial courts, applying methods of principle,' he said.
Overall, Lord Sumption underestimates the value of human rights law in legitimising public outcomes in a democracy,' he said. 'Together law and politics should seek to work hand in hand in creating stability and a humane society which respects rights and human dignity.'
Trials of the State — Law and the Decline of Politics
Far from being what Lord Sumption called an 'unfriendly meeting' law and politics are 'inextricably entwined in a true democracy'.
Lord Sumption’s description of the nature of the judicial process in human rights cases is to some extent misconceived. In particular, when it comes to the Strasbourg Court, his thesis, as I will explain, lacks a comprehensive and nuanced understanding of the historical development of the Court and the Convention system.
'Unchecked majority rule, that takes no account of the interests of the minority, risks descending into authoritarianism. In short, elections do not create omnipotence.'
Spano stressed that 'I do not speak of weakening the role of politics, but rather for law to continue to sustain its true and inclusive democratic character.'