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Dodging the consequences

James McNaney

Trials of the State: Law and the Decline of Politics, by Jonathan Sumption, Profile Books, 128 pp, £9.99, ISBN: 978-1788163729

The UK Supreme Court’s unanimous decision in the recent case Miller vs Prime Minister is a striking piece of prose. There are moments in the text when the drama of events seems to have seeped into the tone of Lady Hale’s writing. The passage that overturns the prorogation of parliament is a case in point:

... the Order in Council which, being founded on unlawful advice, was likewise unlawful, null and of no effect and should be quashed. This led to the actual prorogation, which was as if the Commissioners had walked into Parliament with a blank piece of paper. It too was unlawful, null and of no effect.

The repetition of “unlawful, null and of no effect”, the ironic image conjured up of the commissioners failing to prorogue; this goes beyond the readable academic tones normally used by Lady Hale in here juridical writings, assuming instead the air of a political figure who is self-consciously influencing the course of national life.

The justices seemed aware of the significance of the case throughout the hearing on Miller. At times their questions sounded institutionally existential, as they sought to define their role within the governance of the UK. Lord Wilson posed to the government’s lawyer a not-quite-rhetorical question on the second day: “If there’s anybody who is better placed to defend the legal principle of parliamentary sovereignty, it is us here.”

The UK judiciary has been increasing in power for the last three decades. Judicial review of government action has increased year on year, and successive governments have complained of judges’ willingness to challenge the lawfulness of executive action. The enforcement of the human rights act in the year 2000 helped to inspire a new independence in the highest court of appeal, the Law Lords. The assembled lords had a number of high profile conflicts with New Labour’s rights-infringing implementation of the war on terror. The creation of the UK Supreme Court in 2009 helped to confirm and further this judicial independence.

All of this represented a new role for the UK judiciary. Before the 1980s, the UK’s judges were commonly seen as servants of power and reaction. They interpreted their constitutional role in a limited manner; judges existed only to enforce the law. Parliament made the law and the courts strictly followed the guidance of parliament. With the Miller decision, the court was displaying a constitutional muscle that it did not possess a few decades earlier. This assumption of judicial power poses two related questions: why have British courts gained power, and is it desirable for them to have done so?

These are the questions considered by Jonathan Sumption (Lord Sumption), a former justice of the Supreme Court, in his short book, Trials of the State: Law and the Decline of Politics. Adapted from this year’s Reith Lectures, the book makes the argument that the expansion of law has occurred because of a decline of public trust and participation in politics. Sumption wants to defend the British political process, and the British constitution, amidst an onslaught of criticism provoked by Brexit.

His thoughts on the topic of law and politics are well-rehearsed. He has been making a version of them since at least 2011, when he delivered the FA Mann lecture on “Judicial and political decision making: The Uncertain Boundary”. He returned to the theme in 2012 and 2016, the latter being as part of an Oxford symposium dedicated entirely to discussions of his ideas on law and politics. 

Throughout all of Sumption’s variations on this argument, he has displayed a command of language. He writes with a lawyerly assurance. Trials is a well-written book. The transition from lecture to text has not harmed its readability and Sumption communicates his points with clarity. Like Lady Hale, his style combines an academic’s thoughtfulness with a jurist’s requirement of simplicity.

Sumption’s concern in Trials is “the growing tendency for law to regulate human choices even in cases where they do no harm to others and there is no consensus about their morality”.’ Examples of issues where such moral consensus is lacking include the Charlie Gard “right to live/right to die” case (the parents were “within the broad range of judgements that responsible and caring parents could make”); animal welfare legislation (parliament has denied citizens the right to “make their own moral judgements” about fur-farming), and abortion. For Sumption, this is a change from the liberal philosophy epitomised by John Stuart Mill, which allowed for a range of victimless crimes.

Sumption’s arguments here reveal his affection for consensus. The law ought only to legislate for areas where people agree. When it strays into controversial areas, it may provoke conflict. Sumption’s politics revolve around the goal of mediating and preventing conflict:

The first task of any political system is to accommodate [a society’s] differences, so that people can live together in a single community without the systematic application of force.

Despite Sumption’s expressed preference for Mill, this view on the purpose of the law is rather closer to that of Thomas Hobbes. The assumption is that force may be necessary in a society because of man’s natural tendencies. Politics prevents social breakdown, avoids people descending into a bellum omnium contra omnes.

Sumption is wary of the expanding power of law and wants to see the political process re-established as the arena in which such decisions are made. Politics here is largely synonymous with governance. He refers to extra-parliamentary political activity, such as being the member of a political party, only to explain that such activities are no longer popular. References to “politics” mostly refer to the business of parliament. When Sumption talks of politics retaking centre stage in decision-making he is really making a variation on the theme of “parliamentary sovereignty”, a version of which could be heard in Lord Wilson’s questioning during Miller. He wants parliament to make law and judges to retreat.

Sumption’s clear prose creates an impression of orderliness that masks some rather deep structural issues with his book. Central to this are the clashing explanations he offers for the development of law. The second chapter of Trials contains an exposition of the development of British law. The account is an intellectual history, focused on the thought of Mill and classical liberal writers. The impression one gets from this is that UK law derived from a series of debates between philosophers.

Later in the book Sumption explains that law does not develop in a vacuum but rather reflects Britain’s “long historical experience”. He then explores how wider context influences politics, but not how context influences the law. The earlier intellectual history is never fully balanced by an account that understands law as part of a wider social system. This results in a book that, on the level of historical explanation, never fully connects its view of politics and the law.

Sumption’s view of politics itself is also a little narrow. He contends that “the basic principle of democracy” is “majority rule” and accepts that parliamentary majorities have the right to make rules for everyone else. When he presented this view of democracy at an Oxford symposium, Dr Jeff King pointed out that Sumption’s conception tracked rather closely to that of Joseph Schumpeter, and suggested that since Schumpeter’s elitist majoritarianism now has few supporters, Sumption ought to broaden his gaze. Sumption’s response to this both misunderstood King’s argument and revealed his own unfamiliarity with Schumpeter, while he also declared Schumpeter’s views on democracy to be “invincibly correct”.

Sumption’s own political preferences have an unfortunate habit of distorting his thought. In his final chapter, he reveals that the UK “body politic” is “disease[d]”. The symptoms of this disease may surprise some readers, for they include “the rise of regional nationalisms”. One does not need to be a SNP or Plaid Cymru voter to recognise that Sumption is confusing a change to the status quo with an a priori negative.

Sumption’s emotional connection to the status quo is rather stronger than the arguments he makes in favour of it. This is epitomised in his defence of the British constitution. Sumption defends the UK’s basic law in Trials of the State, as he also did in a recent exchange with Irish Times columnist Fintan O’Toole. His rejoinder to O’Toole in the Irish Times provides a good summary of his case:

The flexibility of [the British constitution] has allowed it to adapt over three centuries to changes which would have overwhelmed more formal arrangements: the marginalisation of the monarchy, the onset of industrialisation and mass democracy, the existential crises of two world wars, the creation and loss of a worldwide empire and the rise of powerful modern nationalisms in Ireland, Scotland and Wales.

The tone here suggests not just defensiveness of the constitution, but also pride in it. At various times throughout Trials, Sumption speaks of the constitution’s adaptability, its longevity, and most of all, its ability to block violent social and political change. His characterisation of the constitution is indeed typical of many British writers’ celebration of their foundational law. “Britain is an ancient State with a long and unbroken constitutional history.” That is to say we are unique; we have avoided the upheavals and violence that have troubled certain other nations.

To celebrate the UK constitution as a unique achievement in democracy is to be guilty of three categories of oversight. The first is in the classification of the UK’s government. As Stephen Sedley has pointed out in the London Review of Books, the UK is not a parliamentary democracy but a constitutional monarchy. The legal basis of power is the absolute power invested by God in the sovereign, which is then conferred by the sovereign upon parliament. The early stages of the UK’s democratisation took the form of a contest between parliament and the crown over control of law-making, one fought most bitterly in the seventeenth century.

Britain’s status as a monarchy has legal implications. While the monarchy may have been divested of its political power, many laws and governmental practices still rest upon the monarch’s constitutional position. This is particularly true of the hard-to-define powers of prerogative that are held by the executive. In the Miller case, the court had to work through the ambiguities created by prerogative power to prorogue. One such issue was deciding the appropriate institution to rule on the legality of the use of a prerogative power, with Lord Sales asking the government lawyers: “If there are constitutional principles that are required to be policed, isn’t it more appropriate for the court to do it rather than for the Queen to be sucked in?”

The second oversight is chronological. Recent centuries have indeed seen a lack of political violence on the island of Great Britain, however that island was convulsed by two major civil wars in the seventeenth century, and these had a decisive impact of the nature of UK governance. The assertion of parliament’s power in the face of the monarch owes much to the wars of four centuries ago. The notion of parliamentary sovereignty might not have emerged at all were it not for these upheavals. To ignore these bloodlettings and celebrate Britain’s “peaceful” democratisation is to display an isolation in the recent past ‑ a surprising position for a distinguished medieval historian like Sumption to find himself in.

The third oversight is geographical. The UK was, for more than a century, the United Kingdom of Great Britain and Ireland. These decades featured many political and violent campaigns against the nature of the UK constitution. Irish voters repeatedly expressed a desire to gain autonomy from the UK ‑ and were repeatedly ignored. The goal of legislative independence was only realised in 1922 after a war fought within the boundaries of the British state. Many thousands of British and Irish lives were lost due to fighting caused by this core aspect of Britain’s constitution.

Indeed one could look beyond the geographical boundaries of what was once called the British Isles and be troubled by the UK constitution’s ability to govern the world’s largest empire. The UK’s basic law is hardly unique in allowing for imperial projects; the French and US constitutions also created central governments that proceeded to conquer significant territories. The point is rather that the UK political system can only be celebrated as uniquely democratic if one makes a huge exception for empire. Parliament was for a long time known as the imperial parliament and the laws made under its constitutionally ordered system subjected many hundreds of millions of people to unjust rule.

Sumption is “skeptical” of claims that the British constitution needs changing. This scepticism is founded not only in his aforementioned taste for keeping things as they are but in some ambitious historical contentions. As he weighs up potential arguments for and against constitutional change, he declares that the “godparents of written constitutions have been revolution, invasion, civil war and decolonisation”. He also explains that a new UK constitution would lead to “disruption and instability”.

This rhetoric equates constitutional change to danger. Sumption is worried about the “consequences” of actions. But “consequence” is a phantom, one summoned up whenever change to the status quo is proposed. Sumption is afraid that such change might even lead to the erosion and then disappearance of Ddemocracy. Even when he proposes constitutional changes, as when he considers the merits of introducing proportional representation, he does so with due concern over the “price” to be paid, and the “loss” of “stable government”. Such language tends to make him a reactionary, a tendency that was pointed out to him when he presented these ideas in 2016 but which he has not demurred from since.

Sumption’s misuse of rhetoric suggests an explanation for the logical deficiencies in Trials of the State. The author has miscast and then misapplied his set of historical actors. The, “seventeenth century” is described as having “abolished absolute monarchy”. If only someone had informed the French revolutionaries of this fact it might have saved them some trouble. The first person plural also does a lot of analytical heavy lifting in the book: “we” established democracy, “we” have remained consistent in the face of terror, “we” have a system of laws that does all right.

The collective pronoun does moral work too, for Sumption wants his audience to accept blame. The book ends on a note of collective responsibility as Sumption envisions the potential collapse of democracy: “the rhetoric of democracy will be unchanged, but it will be meaningless. And the fault will be ours.” Others have erred when they “called for institutional reform”, for “the real problem is in ourselves”. Here enters Cassius Sumption: “The fault, dear Brutus, is not in our stars, but in ourselves, that we are underlings.”

Shakespeare and Sumption might have a flair for expression, but the note of collective responsibility is at odds with two other aspects of Sumption’s argument. First, he accepts that political elites can be aloof from ‑ and unresponsive to ‑ the populace. He speculates that this is inevitable with politicians. Second, he suggests that the current crisis of democracy has its roots in the worldwide economic turmoil of the past decade. If the issue causing the breakdown of democracy is beyond any one nation’s control, and if this nation’s political elites are aloof from the population, how can that same nation’s population be blamed fairly for the state that “we’re” in?

The shortcomings of Trails are a shame, for Sumption is surely right to identify the likelihood of institutional and constitutional conflict in the UK. The judiciary’s increased power has upset the executive, and in the absence of a wholly codified or legal constitution to protect the Supreme Court’s position, it is vulnerable to being changed. In the days after the Miller verdict there were numerous stories written that suggested the government could be considering changes ‑ bringing back the Law Lords or fully politicising the bench in the US fashion. These leaked rumblings are exactly the sort of executive backlash that Sumption fears.

In a previous version of Sumption’s thesis on the law and politics, he summed up the purpose of intervention thus:

We need to know where we are going … if we choose constitutional change, we should do it on purpose and not as a byproduct of decisions … made by diplomats and lawyers

If “we” are going to approach constitutional change with open eyes, “we” must also understand society as containing overlapping systems of action: political, social, economic, legal. A satisfactory history of law is always a history of the influences upon law, and it must carefully trace the conflicts and interactions that have produced the law and constitution as it exists today. Sumption’s failure to do this in Trials of the State is disappointing, but it does not dull the power of his prediction. Change is coming to the UK constitution, and the “consequences” might be drastic.

1/11/2019

James McNaney is a PhD candidate at Queen’s University Belfast and a freelance writer. More of his writing can be found at paper-sail.blog

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