Every year the BBC invites a “significant international thinker” to give a series of lectures on a topic of the invitee’s choosing. The series has been criticised for ‘dumbing down’ in recent years, which may have figured in the BBC’s decision to nominate Jonathan Sumption—sometimes known as the “brains of Britain”—to give this year’s lectures.
Who is Jonathan Sumption?
Sumption is a recently retired Justice of the UK Supreme Court. His appointment to the Court directly from the Bar in 2011 was delayed while he represented Roman Abramovich (the owner of Chelsea Football Club) in a £3 billion suit brought by fellow London based oligarch Boris Berezovsky in what was rumoured to be the most lucrative brief in British legal history.
It was money well spent. Sumption’s cross-examination won Abramovich the case and, now financially ruined, Berezovsky died six months later in an apparent suicide.
If his legal achievements were not enough, Sumption is also an acclaimed medieval historian, with four volumes on the Hundred Years War published so far to high critical acclaim.
In his series, Law and the Decline of Politics, Sumption argues that judges have become arbiters on issues properly the preserve of politicians. I will discuss what this means, and why, according to Sumption, this is occurring.
The American Experience
The United States is a country in which lawyers wield great power at the expense of politicians. If, in the opinion of an American court, its politicians pass a law which contravenes a citizen’s constitutional rights, that law is invalid.
Many would argue this is a good thing. However, a political party in the United States could, for example, win an election on a platform of reforming gun laws, only for the legislation to be struck down in the courts.
Similarly, one might agree with the decision in Roe v Wade, which made bans on abortion unconstitutional. But if the Supreme Court were to reverse its position (which it might given its new conservative majority), many may begin to feel that voters and not judges should have control over the issue.
Sumption identifies this as one of the essential problems with human rights. Not everyone agrees on what they are. And even if they do, the power to decide what they mean is a profound one, and one which is wielded by a remote, unrepresentative and unelected set of elites.
Britain’s human rights framework
Unlike the United States, Britain has no codified constitution and no bill of rights. In theory, the British Parliament could pass any law, no matter how tyrannical, and there is little a court could do about it.
However, Britain is party to the European Convention on Human Rights, which limits Parliament’s power in significant ways. If the European Court of Human Rights says a British law contravenes the Convention, Parliament must amend it to prevent the UK being in breach of international law.
Again, many would argue this is a good thing. But many others question this system, and not all of their arguments derive from ignorance or ill will. A person might think, for example, that a right to privacy constrains the media’s freedom to publish on issues in the public interest. Others might feel that freedom from arbitrary detention prevents the government from effectively responding to threats to national security.
There are no right answers to these questions. Yet, what Sumption calls a “priestly caste” of judges decide where the line is drawn between these competing interests rather that the public through their elected representatives.
How can we square this state of affairs with the concept of democracy? According to Sumption, this is done by altering what the concept itself means.
A new concept of democracy
Democracy as traditionally understood refers to an arrangement in which governors act according to the values of the governed or risk losing their positions at the following election.
But a new conception has emerged in recent decades, according to which democracy is itself a system of values in which human rights like those contained in the UN and European conventions are guaranteed.
The latter idea is attractive on its face. These instruments were, after all, created in response to horrific human rights violations. In Sumption’s view, however, this system is the same in kind as those it replaced: it assumes that the rights it privileges are so obviously correct that they should be invulnerable to challenge or change.
Sumption rejects these, what he calls ‘value based’ systems. He says that there should be no restraint on which laws a society can enact, except those necessary to elevate man above a state of nature, without which life would be “a crude contest in the exercise of force”. These include the right to live without arbitrary interference or threats of violence.
The only other rights he says should be protected are those required for democracy as traditionally understood to function, such as the right to vote in free and fair elections, freedom of speech and freedom of assembly.
Surprisingly, given his criticism of the European Court, he does not object to it retaining jurisdiction on these questions. He says that Britain has at times had a poor human rights record, and that an external check is desirable to prevent this reoccurring.
The current political crisis
It is eminently possible that the United Kingdom will, after more than three hundred years, cease to exist within the next ten. Brexit has revived nationalist sentiments in Scotland, which voted strongly to remain in the European Union, and presents the problem of a possible hard border between Northern Ireland and the Republic in breach of the Good Friday Agreement.
It is moments like this, Sumption says, that the temptation to effect radical institutional change is greatest. But he counsels against this, stating that Britain’s contemporary problems are derived from social, educational and economic divisions and a general disillusionment with the ruling elites rather than Britain’s peculiar 'unwritten' constitutional arrangements.
There are a few problems with this argument.
First, the idea the that the British constitution is ‘unwritten’ is not quite correct. Britain’s constitutional rules are expressed somewhere—mostly in legislation or judicial decisions—and their meaning interpreted by judges just as in states with codified constitutions.
Second, a codified constitution may have, for example, required the Brexit vote to have been carried by a majority of voters in a majority of the UK’s four constituent nations, in which case Brexit would not have passed for lacking a geographical mandate. The ideological divides would still have been there, but they may have been better mediated in this case.
Third, a written constitution might have required a referendum before Britain acceded to the Lisbon Treaty (which made the EU a political union), which would either have resulted in Britain not acceding, or, if it did accede, the public’s discontent about the remoteness of power may have been less acute. This could have caused a different result in 2016, or obviated the need for the vote in the first place.
Fouth, codified constitutions generally specify both the powers of the three arms of government, and the implications of successful referenda, both of which British judges (including Sumption himself) have had to resolve in cases like Miller (the case about article 50 which triggers an exit from the EU). The fact that constitutional rules are not contained in one clear, carefully drafted document, only means the rules are less clear, leaving judges in the invidious position of deciding—or appearing to decide—what the law ought to be in many cases.
In truth, Sumption is not worried about British lawyers being powerful. As he says at the beginning of his fourth lecture, along with their American counterparts they are already the most powerful in the world. That is the result of the common law system, which is lawyer-centric by nature.
Rather, Sumption is worried about judges accruing a certain kind of power: power over issues of opinion and values which the public is powerless to reverse. Codifying the British constitution need not do this. A constitution can distribute powers without conferring rights to its citizens. Just ask an Australian.
And while it is true that a written constitution would prevent the Parliament (and indeed courts) from developing constitutional principles in what Sumption calls a 'piecemeal' fashion, that latitude and lack of clarity is not serving anyone very well.
Looking at it on a global level, surprisingly little of Sumption's talk concerns how judges are creeping into the domain of politics. And when Sumption does discuss this issue, nothing he says is new.
That is not to say this is not a good series. It is. But its value lies in the depth of Sumption's geographical—and especially historical—analysis.
Sumption draws an intriguing landscape of the contemporary British political system—a paternalistic state in which an elective aristocracy has absolute power subject to the creeping influence of a supra-national court—and argues how and why this system should be amended rather than jettisoned.
The British constitution is uniquely flexible which, for better or worse, has prevented the disruptive and sometimes bloody upheaval seen in most of the rest of the world over the past several centuries. But recent events show that in a complex world Parliament's ability to modify the constitution on a whim both empowers lawyers and undermines the system's stability.
It is true as Sumption says, however, that the sentiment of the British public towards its institutions is at a perilous nadir, and that reposing more power in the hands of judges over issues of private and popular values is a tempting but misguided course.
“The shattering of optimism,” Sumption says in his final lecture, “is a dangerous moment in the life of any community.”
These are wise, and timely, words.