Introduction
This essay critically assesses Lord Sumption’s critique of the ‘living instrument’ approach to interpreting the European Convention on Human Rights (ECHR), as articulated in his commentary on judicial overreach. The ‘living instrument’ doctrine, endorsed by the European Court of Human Rights (ECtHR), allows the ECHR to be interpreted in light of contemporary societal values rather than being confined to its historical context at the time of drafting in 1950. Lord Sumption argues that this approach undermines democratic accountability by expanding judicial power at the expense of national parliaments. This essay explores the merits and limitations of the ‘living instrument’ approach, evaluates Sumption’s perspective, and considers whether the doctrine is inherently flawed. The discussion will address the balance between evolving human rights standards and the risk of judicial overreach, supported by academic analysis and relevant case law.
The ‘Living Instrument’ Doctrine: Purpose and Application
The ‘living instrument’ approach was first articulated by the ECtHR in Tyrer v United Kingdom (1978), where the Court ruled that the ECHR must be interpreted in light of present-day standards, rendering judicial birching in the Isle of Man a violation of Article 3 despite historical acceptance of such punishments (Tyrer v United Kingdom, 1978). This doctrine aims to ensure that human rights protections remain relevant amidst societal progress, addressing issues such as gender equality, privacy in the digital age, and same-sex relationships—matters arguably unforeseen by the ECHR’s drafters. Indeed, scholars like Letsas (2007) argue that this flexibility is essential for the ECHR to function as a dynamic tool for justice, adapting to evolving moral and social norms across member states.
However, the application of this doctrine is not without challenges. The ECtHR’s rulings, such as in Hirst v United Kingdom (No 2) (2005) on prisoner voting rights, demonstrate how interpretations can conflict with national policies, raising questions about the consistency and predictability of judicial outcomes. Critics, including Lord Sumption, contend that such expansive interpretations risk transforming the Court into a quasi-legislative body, thereby overstepping its mandate (Sumption, 2016). This concern highlights a key tension: while adaptability is a strength, it may compromise legal certainty if not clearly bounded.
Lord Sumption’s Critique: Judicial Overreach and Democratic Deficit
Lord Sumption argues that the ‘living instrument’ approach enables judges to impose their moral and political views under the guise of interpretation, thus eroding the democratic authority of national legislatures (Sumption, 2016). He suggests that decisions on contentious issues—such as prisoner voting or assisted dying—should rest with elected representatives rather than unelected judges. Sumption’s perspective aligns with concerns about the ECtHR’s margin of appreciation, which, though intended to respect national diversity, can appear inconsistently applied, as seen in cases like SAS v France (2014), where the Court upheld a French burqa ban despite significant debate over personal freedoms.
While Sumption’s critique has merit, particularly regarding accountability, it overlooks the judiciary’s role in protecting minority rights against majoritarian bias. For instance, the ECtHR’s evolving stance on LGBTQ+ rights, as in Dudgeon v United Kingdom (1981), arguably corrected historical injustices that national parliaments were slow to address. Therefore, while Sumption identifies a genuine risk of overreach, his view may undervalue the protective function of a dynamic ECHR.
Is the Approach Inherently Flawed?
Critically, the ‘living instrument’ approach is not inherently flawed but rather imperfectly executed. Its strength lies in enabling human rights to remain meaningful in a changing world, yet it risks subjectivity without clear interpretive limits. Academic commentary, such as that by Mowbray (2005), suggests that the ECtHR could mitigate this by developing more transparent criteria for determining ‘present-day standards,’ thus enhancing predictability. Furthermore, the inconsistent application of the margin of appreciation often fuels perceptions of judicial overreach, as Sumption warns. Balancing adaptability with restraint remains a complex but solvable challenge, potentially through greater dialogue between the ECtHR and national courts to align interpretations with democratic processes.
Conclusion
In conclusion, while Lord Sumption’s critique of the ‘living instrument’ approach highlights legitimate concerns about judicial overreach and democratic accountability, the doctrine itself is not fundamentally flawed. Its capacity to adapt the ECHR to modern contexts ensures the relevance of human rights protections, as evidenced by landmark cases on privacy and equality. However, the approach requires refinement to address risks of subjectivity and inconsistency. Strengthening transparency in interpretive methods and fostering collaboration with national systems could mitigate these issues, maintaining the delicate balance between evolution and restraint. Ultimately, the ‘living instrument’ remains a vital, if imperfect, mechanism for advancing human rights in Europe.
References
- Letsas, G. (2007) A Theory of Interpretation of the European Convention on Human Rights. Oxford University Press.
- Mowbray, A. (2005) ‘The Creativity of the European Court of Human Rights’, Human Rights Law Review, 5(1), pp. 57-79.
- Sumption, J. (2016) ‘Judgment Call: The Case for Leaving the ECHR’, Judicial Power Project.
- Tyrer v United Kingdom (1978) Application no. 5856/72, European Court of Human Rights.
- Hirst v United Kingdom (No 2) (2005) Application no. 74025/01, European Court of Human Rights.
- SAS v France (2014) Application no. 43835/11, European Court of Human Rights.
- Dudgeon v United Kingdom (1981) Application no. 7525/76, European Court of Human Rights.
