My fundamental concern, and it is at the root of my disagreement with the President, is sovereignty. When I have written and spoken, as I have frequently in the past, about the rule of law, so long established in this country, I have always insisted that by rule of law, I did not mean rule by lawyers or judges. In my view in any country which embraces the principle of democracy, and certainly in the United Kingdom, ultimate authority over constitutional and societal questions is not vested in a body of judges, however wise and distinguished, and even if the system for their appointment is beyond criticism. This is true whether the democratic principle is enshrined in a modern or relatively modern written constitution, or in a constitution like our own, which has evolved over the centuries, and although not precisely written down as a modern constitutional document, is partly written, largely in statute, and partly based on convention.
In the United States of America, when the new republic was in its infancy, authority to interpret the constitution was vested in, or more accurately, taken over by, the Supreme Court. To me it remains an irony that in a written constitution which proclaims the authority of “we, the people”, the decision about, for example, the lawfulness of a termination of pregnancy was left to nine, or more accurately five judges. When that same question was decided here, Parliament enacted the Abortion Act 1967. Be that as it may, the Supreme Court of the United States differs significantly from the Strasbourg Court. The United States of America is a federal country, with a written constitution which applies to the entire sovereign state, where the authority of the Supreme Court reflects that constitution and has done so for two hundred years. Moreover, although the process is subject to stringent conditions, in the United States the constitution itself may be and very occasionally is amended. By contrast the Strasbourg Court is an international court for a group of independent sovereign states, each with its own separate democratic constitution, given authority by Treaty to interpret the Convention. It has no authority to amend or override the constitutional arrangements in any country which is party to the Convention.
Our Parliament is vested with authority to defer its sovereignty and pass it to anybody it may choose: hence the authority vested in the court in Luxembourg where the decisions are and, for as long as Parliament does not repeal the European Communities Act 1972, will remain binding. That legislative structure was not adopted when the Human Rights Act incorporated the Convention into domestic law, and did not vest the same authority in the Strasbourg Court. Indeed the debates in Parliament show that the suggestion that legislative authority should be given to the Strasbourg Court to “bind” our courts here was expressly rejected. And if it could not bind our courts, it certainly could not bind Parliament. This is not the time to analyse the difficulty our judiciary has had in interpreting the obligation imposed on the courts by the apparently simple words “take into account” which defines and limits the extent of the obligation of our courts to follow the decisions of the Strasbourg Court. Whatever those simple words may mean, they do not have the same meaning as the language which was used to create the relationship with the Court in Luxembourg. In any event, however the relationship with Strasbourg may be defined, the Human Rights Act represented an exercise of sovereignty in this jurisdiction by a sovereign parliament. That is our democratic process at work.
The President suggests that the “rule of law” sometimes “trumps” the democratic process. This proposition, however, begs the question which is, where in a democracy does the power to make the law ultimately reside? That is the sovereignty issue. In our constitution, as a result of the constitutional struggles in the 17th century, sovereignty was vested in parliament, or more precisely and pedantically, the King-in-Parliament. We have proceeded for centuries on the basis that the decisions of the highest court in the land can, if Parliament so decides, be subjected to parliamentary scrutiny and legislative amendment. A very good recent example was the enactment of the Criminal Evidence (Witness Anonymity) Act 2008 which overruled the decision of the House of Lords in Davis  1 AC 1128. This principle has not undermined the rule of law in this country. On the contrary, it has stood the test of centuries. It represents simple acknowledgement that in our constitution, ultimate sovereignty does not rest with the courts, but with Parliament. What is more, in our arrangements, although Parliament is expected to respect a Treaty obligation, it is not bound to do so, and legislative enactments are themselves of course subject to subsequent amendment or repeal by the same or later parliaments. For us this principle, embodied in a constitution which is partly written and partly unwritten, underpins the rule of law and represents the rule of law in operation.
If I may say so, I respectfully agree with the observations of Lord Sumption that the Supreme Court in the United Kingdom should seek to follow the decisions of the Strasbourg Court and “treat them as the authorative expositions of the Convention”. A different and perhaps stronger emphasis may be found in Baroness Hale’s identification of the “mirror principle”. But I hasten to add that, as Baroness Hale herself appears to accept, the “mirror principle” is not a new way of describing the old fashioned rubber stamp. We should perhaps recognise that in this jurisdiction some aspects of the law are judge-made, but many more result from statute. Where the relevant law is judge-made the likelihood is that, applying the mirror principle, in the absence of any contrary enactment, the Supreme Court would follow the decision in Strasbourg, leaving it to Parliament to enact any amending legislation. In reality, because by definition any such enactment would be incompatible with the Convention, the chance of any subsequent contradictory legislation would be remote.
Where, however, any “offending” provisions depend on statute, and come under criticism from Strasbourg, different considerations apply. The President suggests that the government must ensure the passage of any necessary amending legislation. If he is right, whether or not Parliament agrees, Parliament is bound to enact laws which will bring the decisions of the Strasbourg Court into effect. Let me take prisoner voting as an example of the problems which arise. Many clear, absolutist, but contradictory positions can be taken. I believe that there are respectable arguments on both sides. At present prisoners cannot vote. Universal suffrage is a fundamental principle of a democratic state, but exceptions to it have always been recognised. Many are younger than the minimum age, however that is defined. Some are disqualified from voting. If the Supreme Court were to decide that any of these disqualifications infringe the Convention, a declaration of incompatibility would follow. Parliament should then address the issue and, despite the declaration of incompatibility, is entitled to maintain the “offending” disqualification. If Strasbourg concludes that the statutory disqualification constitutes an unjustified interference with any individual rights, the process by which this apparent flaw may be amended continues to be statutory enactment. In my view it would be a negation of the democratic process for Members of Parliament to be obliged to vote for a measure with which they disagree. The Treaty obligation does not “trump” statute, and even if the government of the day supported the reform proposed by the Strasbourg Court, it could not guarantee success in Parliament.
There can surely be no argument about many Convention principles, which are reflective of the common law. Torture and slavery are prohibited. Life is sacred. A fair open trial of alleged criminal offences is axiomatic. There are, however, greater difficulties with provisions which refer to considerations which are “necessary” in a democratic society found, for example, in Article 8(2). If the President is correct, what constitutes a necessity in a democratic society is left, in the ultimate analysis, exclusively, to a body of unelected judges, and has been removed from the legislative body elected through the ordinary democratic processes. I recognise the importance attached by the Strasbourg Court when considering Convention rights in this context to the principles of proportionality and margin of appreciation. As we know, and he underlines, they loom large in the approach of the Strasbourg Court. The difficulty however is simply identified. As the Court sees these principles, they are principles of self-denial. Indeed in a very recent speech the President underlined “that the margin of appreciation is something that is allowed to States by the Court” (his emphasis). On this basis, the Court decides for itself whether and when these principles should apply. The President explains later in his article, the Court should “only exceptionally … impose its view on that of national authorities”, but this proposition underlines his opinion that it is entitled to do so when it thinks appropriate.
This brings us back to the issue of sovereignty. I profoundly disagree with the President’s opinion. The force of Treaty obligations and the authority of the Strasbourg Court on the correct interpretation of the Convention, and the rights established by it, are well understood. The adoption by our Supreme Court of Convention principles identified by the Strasbourg Court normally follows. The respect owed by Parliament to the views expressed by that Court is embodied in the Human Rights Act itself. But, using the President’s language, the imposition of those views on Parliament represents a dramatic and unconstitutional extension of judicial authority.