A Boundary Where There Is None

‘In hell​ ,’ the American law teacher Grant Gilmore wrote, ‘there will be nothing but law, and due process will be meticulously observed.’ This has for a long time been the view of a neoliberal school of legal thought; but the argument of Jonathan Sumption’s 2019 Reith Lectures, delivered in May and June and now issued in book form, is more accommodating. It is that while law and due process have their place, they owe considerably more respect to the political process than the UK’s courts have been displaying in recent times.

When Sumption was promoted from the bar to the UK Supreme Court in 2011, he took advantage of an unusual hiatus between being appointed and taking his seat to deliver a major lecture attacking the judiciary of which he was now a member for methodically invading the territory of politics. His evidence for this, as I suggested in the LRB at the time (23 February 2012), was at best weak and at worst self-defeating. After six years as a judge – and, going by some of his judgments, a good judge too – he has returned to the theme of the deference owed by law to politics. It is his bad luck to have done so at a moment when the UK’s political process, both in and outside Parliament, has been in functional meltdown and moral decline, while both his own court and the lower courts have remained a source of constitutional principle and political stability.

For many years the BBC’s Reith Lectures were delivered by a solitary speaker to a microphone in a studio. No longer. This series was given to large invited audiences in London, Birmingham, Edinburgh, Washington DC and Cardiff, each lecture followed by a question and answer session and all of them transcribed and posted online by the BBC. In preparing his texts for book publication, while creditably resisting the temptation to footnote or expatiate at large, Sumption has made some interesting changes.

In print, he writes that relations between government and citizen are governed by ‘an elaborate system of administrative law, largely developed by judges since the 1960s’. When delivered, this phrase was ‘largely created by the judges since the 1960s’, a historical solecism which echoed his previous critique of the judiciary, for there is in reality little in the principles of modern public law (the body of law governing the functioning of the state and its relations with individuals, still obstinately referred to in Oxford as administrative law) which was not already there by the 19th century. What has changed is the polity to which they are applied.

This can be seen clearly enough in the ability of judicial review to reach acts done under the royal prerogative. It has never been in doubt that what the Privy Council does is subject to judicial review if it departs from what is lawful. But where it was assumed, in a classic checklist put forward by Lord Roskill in a 1984 case, that such functions as ‘the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers’ were by their nature inapt for judicial scrutiny, the court of appeal which decided the Chagos Islanders’ case in 2007 (the decision was later overset by a divided House of Lords on unrelated grounds) pointed out that a number of these instances might no longer hold good – for instance if the courts were faced with the grant of honours for payment, the waging of a war of manifest aggression or an outright refusal to dissolve Parliament. The last of these has now come to life in reverse form: the queen, at the request of Boris Johnson, has issued an Order in Council purporting to prorogue Parliament on a date ‘no earlier than Monday 9 September and no later than Thursday 12 September’. This prerogative act may be open to legal challenge on more than one ground. The failure to specify a date (which is ordinarily unobjectionable) may, by putting MPs into limbo, have made the Order void for uncertainty. It may also, by necessary implication, have unlawfully delegated to the prime minister the prerogative power to fix the critical date. Whatever their grounds and outcomes (Sumption was quick to go on air to doubt their viability), the challenges now being brought before the courts in Edinburgh and London could well be of lasting constitutional significance.

One of the most dramatic examples in modern times of the constitutional reach of the courts is the case brought by Gina Miller (who is now bringing one of the further challenges) to stop the use of the royal prerogative, in the form of ministers acting without the authority of Parliament, to give notice of the UK’s withdrawal from the European Union. She succeeded in the High Court (whose three judges were branded ‘enemies of the people’ by the Daily Mail). On the government’s appeal, the 11 justices of the Supreme Court, sitting for the first and only time en banc, were split, with Sumption forming part of the majority in Miller’s favour. At the end of the second Reith Lecture, ‘In Praise of Politics’, he was asked whether in light of this case the Supreme Court was showing a new boldness in the face of government. Rejecting this, Sumption went on to defend the Miller decision in terms he has now added to his text: ‘Although the political impact of the decision was considerable, it was an ordinary exercise of a function which the English courts had been performing since the 17th century. The result was an orthodox application of the long-standing constitutional rule that only Parliament can change the law.’

This is wholly unconvincing. Commenting on the Miller case in the LRB (2 March 2017), I pointed out how cogent – how orthodox in fact – the minority judgment in the government’s favour was: it took the literal approach that the European Communities Act was simply a conduit for rights and obligations stemming from a treaty which, like all treaties, was an exercise of the royal prerogative and so could be abrogated by ministers at any time. Legal interpretation doesn’t get more orthodox than this. It was the majority, Sumption among them, who – in my view rightly – placed substance ahead of form and concluded: ‘It would be inconsistent with long-standing and fundamental principle for such a far-reaching change to the UK constitutional arrangements to be brought about by ministerial decision or ministerial action alone.’

Sumption’s desire to be seen as walking only the law’s well-trodden paths is of course consistent with his advocacy of judicial restraint. Here it is backed by a sweeping prefatory generalisation: ‘Our institutions and our legal and parliamentary cultures have the longest continuous history in the world.’ Given their uniqueness, the comparative longevity of our constitutional arrangements may be no more than a truism; but ‘continuous’? In the course of a single century, didn’t we have two civil wars, regicide, a republic, a restored monarchy, an abdication, a coup d’état and, at the end of it, what the 1628 Petition of Right was arguably aiming at in the first place, a constitutional monarchy?

I ask the question for a reason. Sumption throughout these lectures takes it as given that the UK is a parliamentary democracy. Nowhere does he speak of what the UK actually is, a constitutional monarchy. The irony is that while he was writing and delivering the lectures – in effect the first half of this year – such parliamentary democracy as we had fell apart. The government, despite its reliance on an indecent votes-for-money bargain with the Democratic Unionist Party, repeatedly suffered defeat without resigning. The power of the party whips and their control, with ministers, of the parliamentary agenda began to dissolve. A prime minister who had at least fought and almost won an election was replaced by a political mountebank picked by a portion of the membership of a single party, a process about which Sumption does not conceal his dismay.

In his final lecture, on constitutions, Sumption reflects on the way ‘declining membership rolls have allowed both of the big national parties to be colonised by relatively small numbers of hard-edged zealots and entryists with … no interest at all in accommodating anyone else.’ He has also added to the text of his lecture on ‘Rights and the Ideal Constitution’:

Politics may be a dirty word, but the alternative to it is bleak: a dysfunctional community, lacking the cohesion to meet any of its social or economic challenges and exposed to mounting internal and external violence. This is a potential catastrophe in the making. But there is nothing that law can do about it.

Post-Brexit Britain? At all events, two things follow.

One is that Sumption’s idealised dualism of law and politics (specifically two-party politics), the latter making for moderation, toleration and compromise, the former doing no more than patrol the boundaries of political legality, is spent. The other is that his characterisation of the UK constitution as ‘essentially a political and not a legal constitution’ is an endeavour to draw a boundary where there is none. The point is illustrated by a recent Supreme Court decision. Privacy International brought a case seeking to challenge a decision of the Investigatory Powers Tribunal that the home secretary was entitled to issue what were in effect general warrants for clandestine electronic surveillance. The governing act of Parliament laid down that ‘decisions of the tribunal (including decisions as to whether they have jurisdiction) shall not be … questioned in any court.’ The problem was how to make the words of the statute say less than they appeared to. The minority, of which Sumption was one, held it couldn’t – or needn’t – be done. For the majority, Lord Carnwath applied the principle that an unlawful decision was no decision and so was unprotected by the exclusionary clause. But neither of these is what the case was really about. The majority in effect served notice on Parliament and the executive that the courts are not going to stand by while Parliament, at the executive’s behest, erodes the rule of law, in this case by wiping out the fundamental principle that the executive cannot go fishing for evidence by issuing generic warrants allowing it to invade premises and detain individuals as its officers see fit, a principle fought for and won in the 1760s and now embedded in the common law constitution. To characterise it as a political rather than a legal constitution may be to forfeit the supervisory role of the courts on this and similar critical issues. It may also mean shrugging off exhibitions of judicial philistinism like this one from the High Court judge who wrote the tribunal’s judgment: ‘18th-century abhorrence of general warrants issued without express statutory sanction is not in our judgment a useful or permissible aid to construction of an express statutory power given to a service, one of whose principal functions is to further the interests of UK national security, with particular reference to defence and foreign policy.’

In ‘Rights and the Ideal Constitution’, Sumption felt able to say that ‘the only effective constraints on the abuse of democratic power are political.’ He followed this by claiming, in answer to a question: ‘Our system does politically protect minorities from ethnic or religious discrimination.’ One wonders what the Empire Windrush migrants would say to that. Carnwath, by contrast, writing for the majority, said:

It is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review. This proposition should be seen … as a natural application of the constitutional principle of the rule of law … and as an essential counterpart to the power of Parliament to make law.

At​ the end of his first lecture, Sumption was asked for his view of the law on assisted suicide. The question came from Ann Whaley, who helped her husband to go to the Swiss Dignitas clinic to put an end to his suffering from motor neurone disease, and who, thanks to some anonymous busybody, had been interviewed by the police under caution. ‘The current law on assisted dying is not working,’ she said, ‘and a huge majority of the public wants to see a change.’ Sumption responded, first, by questioning whether ‘decisions on these matters have to be made by judges.’ It was, he said, a major moral issue and therefore best resolved by the political process. Pressed by the presenter, Anita Anand, to come off the fence, he then said this:

I think that the law should continue to criminalise assistance in suicide, and I think that the law should be broken. I think that it should be broken from time to time. We need to have a law against it in order to prevent abuse, but … it has always been the case that courageous relatives and friends have helped people to die … I don’t believe that there is necessarily a moral obligation to obey the law, and ultimately it is something that each person has to decide within his own conscience.

You cannot have a law that is not capable of being applied and enforced by judges. To meet the injustice a bad law may generate by absolving people of a moral obligation to obey it is a remarkable stance for anyone, let alone a judge, to take. It also overlooks the fact that the DPP at the time (Keir Starmer) was required by the law lords hearing Debbie Purdy’s case in 2009 to publish a policy spelling out when he would, and when he would not, prosecute individuals who helped others to take their own lives. You can find it online. Broadly, it gives an amber light to relatives and close friends acting out of compassion but a red light to those actually best placed to help: medical professionals.

It has always been understood that the DPP has a general discretion to withhold or withdraw a technically sound prosecution, for instance on compassionate grounds. But a point may yet come when a non-prosecution policy adopted by a crown officer such as the DPP is challenged as unconstitutional by virtue of Article 1 of the 1689 Bill of Rights, which declares that ‘the pretended power of suspending laws or the execution of laws by regall authority without consent of Parlyament is illegall.’ Law is, it seems, everywhere.

Sumption returns to the issue in his lecture entitled ‘Human Rights and Wrongs’, but only in order to insist that he was right, as one of the minority in the Nicklinson case on assisted suicide (in which, in 2014, the Supreme Court was complicatedly divided), to hold that the entitlement of a rational patient to seek assistance in dying was entirely a matter for Parliament and not susceptible of a human rights solution. In this, ironically, he had the support of the Strasbourg court which, with its large Catholic element, has found ways of evading the issue.

It is not clear why Sumption thought it worthwhile to devote a whole lecture to criticising the Human Rights Act and convention, when the attack on it was only ever a back door to Brexit and has, at least for now, faded from the political agenda. But one aspect of his assault deserves comment. He is not the first to object to the incongruity of qualifying a number of convention rights (free expression, respect for private life and so on) by allowing such state interference with the right as is prescribed by law and ‘is necessary in a democratic society’ for specified public purposes. This, Sumption asserts, potentially turns every human rights court into a political forum.

His critique, while not without substance, overlooks two key things. One is that the Strasbourg court itself long ago recognised the problem and has consistently read the ‘necessary in a democratic society’ formula as requiring measures to be proportionate to their objectives: not a comfortable solution, true, but a pragmatic way of avoiding political adjudication. The other is that this formula was put into the convention by its Conservative drafters, David Maxwell Fyfe, Duncan Sandys and others associated with the European Movement. Its purpose was to prevent member states, particularly those with socialist and social democratic regimes (Britain among them), from invoking state necessity as an excuse for stifling basic freedoms. If, for example, free expression was to be limited, the limitation was not to go beyond what was necessary; and necessity was to be judged by the standards of democracy, not of statism or authoritarianism. History, as Sumption would doubtless accept, can explain a good deal.

30 August