TRIALS OF THE STATE: LAW AND THE DECLINE OF POLITICS
Naval Review members may well wonder what this slim (112 pp) volume presenting edited versions of the 2019 Reith Lectures might have to do with them. As I shall explain, I believe it presents key issues upon which all citizens need to reflect carefully, especially those whose duty it is to preserve peace, order and a democratic society, and to represent a model of how servants of the State should behave.
Lord (Jonathan) Sumption is a remarkable man. Trained as a solicitor, he is a renowned mediaeval historian, and a former judge of the Supreme Court. He is also a man who has reflected deeply on our constitution, on its nature and aims, and on the threats to those things.
In this book he examines closely the relationship between the law and politics and the particular roles of politicians as legislators, and judges as interpreters (and administrators) of the law. He allows that judges do create the body of Common Law through precedent, but this is not primary legislation and is liable to change when the need arises. His particular concern is that increasingly the law is being used as a social tool, supplanting social custom, manners, and individual responsibility, and requiring the courts to interfere in policy and in political rather than legal issues. He believes, and produces good evidence, that politicians are increasingly opting out of policy decisions, largely to avoid the blame and odium which might attach to decisions, and expecting the courts to become, in effect, legislators – a role which he believes is not their business, not least because they are not accountable. This, he suggests, is allowing a breakdown of our political life as Parliament increasingly leaves the courts do what they should be doing, but declines to do.
Since the Supreme Court is a principal guardian of the constitution, he is also concerned about the tendency to forget the importance in a democracy of minority views, and to expect the winner to ignore some degree of compromise in the interests of the whole, and rather to expect to “take all”, as for instance some of the more extreme supporters of Brexit appear to demand. He does not, by the way, take sides on Brexit (although he is clear about the impact of the nature of the debate) but believes that both sides have strong arguments in their favour – another reason for seeking compromise in the interests of social harmony.
He is highly suspicious of referenda, which he regards as inevitably divisive and as encouraging extreme and uncompromising leaders, making social division inevitable and even bitter. In particular, he takes issue with the idea that elected MP’s are bound to follow the results of a non-legally binding referendum, irrespective of the majority (or minority) views of their own immediate constituents or of their own consciences and understanding. In support he quotes the great Parliamentarian Edmund Burke:
“To deliver an opinion is the right of all men. That of Constituents is a weighty and respectable opinion, which a Representative ought always to rejoice to hear; and which he ought always most seriously to consider. But authoritative instructions, mandates issued, which the Member is bound blindly and implicitly to obey, to vote, and to argue for, though contrary to the clearest conviction of his judgement and conscience; these are things utterly unknown to the laws of this land, and which arise from a fundamental Mistake of the whole order and tenor of our constitution. Parliament is not a Congress of Ambassadors from different and hostile interests […..] but [……] a deliberative Assembly of one Nation, with one Interest, that of the whole.”
His main concern in all this is that the trends he observes and what flows from them are much more likely to bring democracy down than to reinforce it, a view which, as it happens, your reviewer shares. He does not reach this conclusion with anger but with a moderation, brevity and clarity which are a model of fine writing and argument. Anyone who has a role in or public business or in our democracy or who is involved in its defence should read this very thought-provoking work and think hard about it.