Not since the venerable Lord McCluskey in 1986 had a judge been considered such a “leading figure” in British intellectual and cultural life as to have been invited to deliver the Reith Lectures on BBC Radio—these being the criteria for selection.[i] In 2019, Jonathan Sumption, Lord Sumption, former Supreme Court Justice (2012-2018), was selected for the honour. This is one indication perhaps, of the prominence of judges in our time. Sumption is not as well known as previous Reith Lecturers, e.g. 2017’s Hilary Mantel or 2016’s Stephen Hawking; however, he, alongside his former colleagues on the Supreme Court, achieved some degree of fame by presiding over, in particular, the Miller[ii] case in the early stages of the process by which Britain would withdraw from the European Union.
Sumption’s repertoire extends beyond the law. He is a Wolfson Prize-winning historian with a penchant for the Hundred Years War. Indeed, it is with a keen sense of history that he frames the arguments he lays out over his five lectures. This short post will focus on the third of these lectures, entitled “Human Rights and Wrongs”[iii] in which he argues that the British courts have usurped power via human rights law — power traditionally retained by the political process.
- Law and Politics, Fact and Opinion
Questions of opinion which affect the nation generally are traditionally political—decided by Parliament representing the views of the public. Questions of law, such as the interpretation of a clause or the strict application of a crime, are traditionally confined to the judiciary. Consequently, we have come to expect judges not to answer political questions, and politicians not to answer legal questions. In sum, political questions should have political answers, and legal questions, legal answers. The use, or misuse, of legal answers to political questions is a trend that Lord Sumption claims to have identified.[iv]
But what does Sumption mean by a political question and a political answer? Beside these, what does he mean by their legal equivalents? To illustrate his point, Sumption focuses on human rights law,[v] as codified in the European Convention on Human Rights (ECHR), and its interaction with the British political process.
- A Healthy Suspicion of Human Rights
The ECHR, applied by the European Court of Human Rights (ECtHR), allows for certain rights to be restricted for legitimate purposes or when necessary in a democratic society. What constitutes a legitimate purpose or a necessity, Sumption argues, are classically political questions reclassified as legal questions by the ECHR. Political questions, as matters of opinion, should be answered by politicians in Parliament, elected as representatives of the people, through whom the people rule. The judges of the ECtHR, when ruling on the scope of the Convention rights, are thus giving legal answers to political questions. There are two apparent problems with this. First, judges exist to apply the law, not to apply their values to the law. Second, and consequently, this law-based decision-making entrenches the opinions of judges as constitutional foundations of the state—with the impotent political organs shriveled and spluttering, too cowed to assert their legitimate power.
Parliamentary supremacy, in theory, subjugates the decisions of the ECtHR, and decisions of UK courts applying the ECHR, to Acts of Parliament in the hierarchy of British law-making. In practice, however, Parliament does not generally fail to tow the European line, implementing ECtHR judgements which find Britain in violation of their obligations under the Convention. The UK government faces international condemnation if they fail to tow the line, as they have. 17% of the British public trust politicians to tell the truth, while 83% trust judges.[vi] Both statistics point to the elevation of law above politics in terms of public legitimacy.
- Old Democracy and New
So, Sumption proposes that questions of opinion came to be treated as questions of law, upon which a panel of unelected officials left to arbitrate. Whether by misclassification or intentional reclassification, it lay in the drafting of the ECHR, these loosely written articles, hiding vast dormant potential which the judges have exploited. E.g., R (on the application of D) v Secretary of State for the Home Department,[vii] Blood and Tarbuck v Secretary of State for Health,[viii] and Bellinger v Bellinger.[ix] Each case identified an Article violation and was subsequently remedied by legislation.
This marks a gentle British shift towards legal constitutionalism, of the kind practiced in the US. Of course, there is no guarantee or presumption that the opinions constituted by the political process will be any wiser than those of the individual judges; substantively, they may be the same. The wisdom of any state policy depends upon the wisdom of the people who conceived it. Make no mistake, Sumption presses, legitimate law hangs solely on procedure—in a classically liberal democracy at least.
There are two rival conceptions of democracy which Sumption uses to explain the new and old orders. Those who cling to the old order may define democracy as “a constitutional mechanism for arriving at collective decision and accommodating dissent.”[x]Those who hasten in the new order may define it more in terms of a system of values; this is democracy as “a generalized term of approval for a set of political values.”[xi] The ECHR is emblematic of this new order; indeed, its purpose is to prevent anything approaching the horrors of the Second World War reoccurring by embedding a set of unquestionable substantive ideas, predominantly what had been called natural rights, at the heart of nascent post-war Europe.
Sumption’s harshest conclusion, to the ear at least, regarding this new democracy is that it is conceptually no different to other value-based forms of statehood: monarchism, communism, fascism, Islamism and “all the great ‘isms’ ” that have historically claimed a monopoly of legitimate political discourse on the ground that its advocates considered themselves to be obviously right.”[xii] Over everything else, Sumption stresses that democracy is a “fragile construct, it is extremely vulnerable to the idea that one’s own values are so obviously urgent and right that the means by which one gets them adopted don’t matter.”[xiii]
- The Rule of Law, or of Lawyers?
If Sumption has correctly identified this threat to democracy’s fragile construct, then it comes from an unexpected source: the legal profession, or more specifically, the high ranks of that profession. The rule of law, common law in tow, has long restrained the power of judges; restraints that they seem to have slipped. We now live not under the rule of law, but under the rule of lawyers. Lawyers, so Sumption might warn, who aren’t reluctant to opine for all.
In their victorious 2019 General Election Manifesto, the Conservative Party stated its intention to:
“look at the broader aspects of our constitution: the relationship between the Government, Parliament and the courts…In our first year we will set up a Constitution, Democracy & Rights Commission that will examine these issues in depth, and come up with proposals to restore trust in our institutions and in how our democracy operates.”[xiv]
These intentionally hazy proposals will likely include a review of the Human Rights Act 1998, the mechanism of judicial review, and the selection process for the Supreme Court. With Conservative leader Boris Johnson’s prorogation gambit defeated by the Supreme Court in September 2019, he may seek to fetter the courts’ power through reform. Trust in politics will not be easily won back, whichever way it might be. A stronger “civic culture”,[xv] for which this trust is a precondition, “based on communication and persuasion, a culture of consensus and diversity, a culture that permitted change but moderated it”[xvi] is the prize.
[i] BBC Radio 4, ‘The Reith Lectures’ https://www.bbc.co.uk/programmes/articles/4ZTNLKgrG2mSzfgC1ZYlNmV/about-the-reith-lecturesaccessed 19 December.
[ii] R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5.
[iii] Jonathan Sumption, ‘Human Rights and Wrongs’ (The Reith Lectures, BBC Radio 4) https://www.bbc.co.uk/programmes/m0005msd accessed 17 November 2019.
[iv] Jonathan Sumption, ‘The Reith Lectures’ (BBC Radio 4) https://www.bbc.co.uk/programmes/m00057m9/episodes/player accessed 17 November 2019.
[v] Sumption (n 3).
[vi] Ipsos Mori, Veracity Index 2018 (Ipsos Mori, 18 November 2018) https://www.ipsos.com/ipsos-mori/en-uk/advertising-execs-rank-below-politicians-britains-least-trusted-profession accessed 18 November 2019.
[vii] [2002] EWHC 2805.
[viii] Unreported.
[ix] [2003] UKHL 21.
[x] Sumption (n 3).
[xi] ibid.
[xii] ibid.
[xiii] ibid.
[xiv] Conservative Party Manifesto 2019, https://assets-global.website-files.com/5da42e2cae7ebd3f8bde353c/5dda924905da587992a064ba_Conservative%202019%20Manifesto.pdf accessed 19 December 2019.
[xv] Gabriel Almond and Sidney Verba, The Civic Culture: Political Attitudes and Democracy in Five Nations (Sage 1963) 8.
[xvi] ibid.