Lord Sumption delivers article 6 lecture at Glasgow University

Justice of the Supreme Court, Lord Sumption, delivered the James Wood lecture at the University of Glasgow.

Lord Sumption’s speech focused on Strasbourg’s appetite for transforming the Convention into an an “instrument of the European public order” by means of expanding its scope, something many lawyers would argue is beyond its remit.

He looked at this practice through the lens of the “right to a court” aspect of article 6.

He began with a discussion of Golder v United Kingdom (1979-80), a leading case on the teleological approach to the application of the ECHR in which the applicant, a prisoner, was prevented from consulting a solicitor without the approval of the Home Secretary.

Finding in the applicant’s favour, the European Commission of Human Rights – the body which first dealt with petitions at that time – said that article 6 implied a right to a trial – leaving the rule in violation of the Convention.

Mr Golder’s was a test case on the “general approach to the construction of the Convention” but it gave the government cause for concern owing to the Commission’s “propensity to add implied rights to the Convention.”

However, the government was confident only those rights agreed to in 1950 were protected and did not expect the scope of the Convention would be extended. It marshalled the talents of Professor Sir Francis Vallat KCMG QC,Sir William Dale KCMG, and Gordon Slynn QC in defence of its position.

However, Mr Golder succeeded at the Strasbourg court, which availed itself of article 31 of the Vienna Convention on the Interpretation of Treaties, in order to imply the right to a trial.

It further bolstered this position with a reductio ad absurdum: that without a right to a court the right to a fair hearing is meaningless.

Lord Sumption then traced the caselaw of the ECtHR to demonstrate how “article 6 has been the vehicle for some quite striking incursions into the content of domestic law”, contrary to its own formula in Fayed v United Kingdom (1994) that the court “may not create through the interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned.”

In that very case the court innovated on the reductio ad absurdum in Golderand expanded it by nullifying the immunity of inspectors appointed under theCompanies Acts without paying heed to the rule’s raison d’être; that qualified privilege is necessary in a duty with a public interest element and that it is a matter of substantive rather than procedural law. Instead, it conflated this with immunity based on status – which it deemed inconsistent with the rule of law.

The Strasbourg court erred again in Osman v United Kingdom 2000 in which it conflated the police’s absence of a duty of care with immunity. It failed to see that if no duty of care arises there is nothing to be immune from.

Lord Sumption said: “The result of Osman was that for some years actions against the police and other public authorities could not be struck out. Instead, they were required to go through the ritual of a full trial only to fail later and at much greater cost for want of a relevant duty.”

The Grand Chamber partly “repented” in Z and others v United Kingdom 2002, effectively overturning Osman.

In Roche v United Kingdom (2006) and Markovic v Italy (2007) the court regrouped and backtracked on Fayed by recognising a distinction between substantive and procedural rules in domestic law. Lord Sumption recognised this as an improvement “on the indiscriminate approach previously adopted.”

“But it is hardly satisfactory. It can be, as has often been remarked, a very fine distinction indeed. Even when the distinction is clear, it is frequently arbitrary. And there are some rules of law which do not readily lend themselves to a simple classification as procedural or substantive,” he added.

He offered as examples of rules not easily classified time bars and state immunity. On the Strasbourg court’s view, limitation – a procedural rule – would be amenable to review for legitimacy and proportionality, which is what it held in Stubbings v United Kingdom 1997.

In the case of immunity it determined in Al-Adsani v United Kingdom 2002 that state immunity was procedural, something the English courts have “received with some perplexity”. Lord Sumption added that the court’s reasoning did not matter so long as it reached the result that state immunity was justified.

However, citing Cudak v Lithuania (2010) and Sabeh El Leil v France (2012), the judge warned of Strasbourg acting as an appeal court “from perfectly fair proceedings in national courts simply because it disagreed with the way in which they had applied their own law.” In each case it had no problem with the fairness or impartiality of the domestic courts but disagreed with how domestic law had been applied.

The Supreme Court Justice warned that Sir Gerald Fitzmaurice’s prophecy inGolder that the court’s approach would “lead to the development of a class of human rights with no exact definition and no principled limits” had been “borne out by events.”

“It is open to doubt whether Article 6 was ever intended to serve such a purpose,” he concluded.

Read the full lecture on the Supreme Court’s website.