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Jonathan Sumption's third Reith lecture on 'Human Rights and Wrongs' is on @BBCRadio4 now 😬. Will tweet a bit about what he's saying in the thread below... bbc.co.uk/sounds/play/li…
@BBCRadio4 I was at the first lecture which wasn't very interesting
He's talking about 'dynamic treaties' - a "supranational mechanism for altering and developing it in future"
He says that these create a source of law which is "independent of democratic process"
I imagine this isn't a good thing for him
He says that these create a source of law which is "independent of democratic process"
I imagine this isn't a good thing for him
In theory British courts can reject the position of the Strasbourg court, and Strasbourg sometimes alters its decisions in response. Correct. E.g. Al Khawaja justice.org.uk/al-khawaja-tah…
He says the Strasbourg Court responsible for making European Convention a 'dynamic treaty', i.e. living instrument that can adapt to modern conditions
(He doesn't think this is a good thing)
He accepts for abstract text to be interpreted it needs to be flexible to an extent...
(He doesn't think this is a good thing)
He accepts for abstract text to be interpreted it needs to be flexible to an extent...
nb his interpretation of history of European Convention of Human Rights, that there was no intention by the drafters that it would adapt to modern conditions, is highly debatable and my understanding is that different founders thought differently about this - see @EdBatesECHR
@EdBatesECHR He's very animated about Article 8, right to private and family life. Lists a number of things which "are not a natural interpretation of its terms", interpretation of text which "rest on sole authority of Strasbourg Court"
"in reality a form of non consensual legislation"
"in reality a form of non consensual legislation"
@EdBatesECHR He says that non fundamental and contentious rights should not be included
It has become "something meaner", a template through which to assess most aspects of the modern legal order
The effect has been to "devalue" the idea of human rights
It has become "something meaner", a template through which to assess most aspects of the modern legal order
The effect has been to "devalue" the idea of human rights
@EdBatesECHR Abortion, fetal tissue research, assisted suicide... in a democracy the appropriate way of resolving contested issues such as these is through the political process.
Human rights law does this too readily, transforming controversial political issues into decisions for the courts
Human rights law does this too readily, transforming controversial political issues into decisions for the courts
This is classic US-style originalism.
I agree that courts need to be careful not to go further than is necessary to protect rights
But Sumption is saying it should never go further than the rights which have a high level of agreement in society, e.g. contra torture....
I agree that courts need to be careful not to go further than is necessary to protect rights
But Sumption is saying it should never go further than the rights which have a high level of agreement in society, e.g. contra torture....
... The problem with this argument is that it assumes the rights in the convention all attract popular approval. They don't. That's part of the point of human rights laws, they protect people which majoritarian democracies tend to leave behind
... for example, the protection from discrimination on grounds of sexuality. This isn't included in the text of Article 14 but has been an important element of the Strasbourg Court's work e.g. rightsinfo.org/5-times-human-…. What does Sumption think about that? 
Sumption now talking about one of his real bugbears (see tweets about 1st lecture) - assisted suicide; the Nicklinson case.
Assisted suicide "not a question of law but a question of moral and political opinion"
We now know his own opinion - he thinks it should be banned
Assisted suicide "not a question of law but a question of moral and political opinion"
We now know his own opinion - he thinks it should be banned
He ignores - tellingly - the essential nature of the Human Rights Act. Section 3 'declaration of incompatibility', the court's most significant power, *does not strike down legislation*, it sends it back to Parliament. Parliament retains the control Sumption says it should have!
Sumption now comparing a constitutional rights system, where the legislature is bound to act according to certain essential rights are interpreted by judges, to...
fascism, communism and islamism
Oh Jonathan
fascism, communism and islamism
Oh Jonathan
Very good point by @EdBatesECHR
Sumption paints the European Court of Human Rights as being a kind of rebellious child which has run away from its parents
But the UK has been deeply involved in the process over the decades through the @coe...
Sumption paints the European Court of Human Rights as being a kind of rebellious child which has run away from its parents
But the UK has been deeply involved in the process over the decades through the @coe...
... don't forget the @coe is an international body which includes elected representation from all of the member states en.wikipedia.org/wiki/Council_o…
I get Sumption's argument but in a detailed lecture he has missed out some essential counterpoints to his thesis
I get Sumption's argument but in a detailed lecture he has missed out some essential counterpoints to his thesis
@coe I have to get off in a sec but I do want to address his irresponsible comparison between a system of constitutional rights, which places the fundamental rights of the individual above all else...
