Book Review – Trials of the State: Law and the Decline of Politics

This is an interesting little book. Short, with only 112 pages, it really encompasses Sumption’s views on Britain’s democratic system and the role of law within it. Alongside it being a gentle but generally enjoyable read, not a chapter went by where I didn’t think it would make ideal extension reading for a sixth form student.

Lord Sumption sat on the Supreme Court from 2012 to 2018

Lord Sumption, after a successful career as a QC, was appointed a Justice of the Supreme Court in 2012. He served on the bench until 2018, ruling on a number of prominent cases including Miller vs Brexit Secretary and Nicklinson v. Ministry of Justice. In sum, he is an authoritative position to make valuable comments on the UK constitution and legal system. Yet, his assent to the nation’s top court is an unusual one. He was a practicing barrister until 2011 and did not serve on any other lower appellate courts. Throughout the sense he gives the sense of being an outsider to the senior judiciary, despite having served as part of it.

The book, perhaps surprisingly giving the author’s background, is a cautionary tale about the growing power of the courts. Sumption recognises that the liberal enabling state has inevitably seen a growth in the power of the courts because there is an increasing range of issues that have become justiciable. However, he cautions that judges have been increasingly asked to make judgments on matters on fundamental ‘moral judgement’. Sumption cites two cases in particular:

The first is the Charlie Gard case in 2017 when doctors made the difficult decision to terminate life support machines of a critically ill boy and his parents, understandably, wanted to take him to the United States where there was a (albeit low) chance of a new treatment. The court was asked to adjudicate, ruling to allow the life support to be turned off and not to allow the boy to be taken to the United States. Sumption seems concerned that the parents decision over their child was ‘nationalised’ at the expense of the individual rights of parents.

The second is the issue of abortion in the United States which has been allowed since the Supreme Court Ruling of Roe v Wade (1973). He again argues that abortion is a moral issue, better adjudicated by politicians than judges (as it was in Britain with the Abortion Act in 1967). He argues that judicial decisions on such sensitive moral issues are not necessarily better than those of elected representatives and have distinctly less legitimacy.

Throughout the book, Sumption is a strong advocate of representative democracy. He is critical of handing important issues over to electorate through referenda. He argues that referenda obstruct compromise and lead to the tyranny of the majority.

Sumption’s judicial life has seen a significant proliferation in judicial review. This is something that Sumption is wary of. This is perhaps unsurprising given Sumption’s legal career. Sumpion earned his considerable private fortune defending the government in judicial review cases, notably the Department of Action in a class action lawsuit over the Railtrack shareholders scheme. He argues that was has been sacrificed for judicial review is democratic legitimacy, believing that its effect is to “confer vast discretionary power over truly political issues on a body of people who are not politically accountable to anyone for why they do”. Based on this, Sumption believes the politicisation of the appointments procedure for judges is inevitable, even though it would undermine their judicial authority and neutrality.

Sumption believes US style confirmation hearings for the senior judiciary are somewhat inevitable.

Of course, one the the driving forces for this growth of judicial review is the ECHR and Human Rights Act (1998). Sumption believes that the danger of entrenched rights is that, in a democracy, moat should not be above legitimate and objective debate. Sumption argues that there are only two categories of rights that are above any debate: those without which social existence is impossible (i.e freedom from unlawful killing) and those without which a democracy can function (i.e freedom of speech and society).

Sumption is particularly sceptical of the “mission creep” of the ECHR and highlights Article 8 as particularly troublesome:

Article 8 – Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Sumption argues that issues have become justiciable that were not in the original language of the convention, notably issue such as artificial insemination, social security rights and legal aid. He sees that the fact the judges have been expected to make rulings under the issues is a form of “non-consensual legislation”. He is critical of the fact that the ECHR has forced judges to adjudicate on issues that are in no way ‘fundamental’. Ultimately, he believes that complex political issues have been repackaged as legal ones, without direct democratic oversight (he notes many judges are unhappy with Human Rights precedents set in Strasbourg). Yet, in this he is plainly wrong. Parliament retains its sovereignty. The consistent decision not to relent to the calls of the ECHR to grant prisoners the vote exemplifies this. Parliament decides not to legislate on these complex moral issues – it could, and does, where it sees fit – for example in the Same-Sex Marriage Act (2013).

Sumption argues there are now two competing conceptions of democracy. One is a “constitutional mechanism”, part of a representative democratic system to arrive atconsensual decisions. The other is a “system of values”. It is clear which Sumption believes is more apposite:

” The objection is that the claim of liberal values to privileged constitutional status is conceptually no different from the rather similar claims of communism, fascism, monarchism, Catholicism, Islamism and all the other great -isms that have historically claimed a monopoly of legitimate political discourse, on the ground that their advocates considered them to be obviously right”

Sumption is writing in 2019, during what might be described as a constitutional ‘crisis’. Yet, Sumption argues that despite the relative instability, the British constitution retains its inherent strength. He argues that despite having crises of comparable magnitude, other countries have not coped any better, despite more formal constitutional mechanisms. Sumption is clearly opposed to the the adoption a codified constitution, preferring gradual reform under which parliament maintains its full sovereignty. Sumption believes that the fundamental issue with British politics is the participation crisis. He notes that the vast reduction in party memberships has allowed the infiltration by sectional groups – making politics more tribal than before.

Conservative Party manifesto 2019: 13 key policies explained - BBC ...
Only 150,000 people were responsible for Boris Johnson becoming PM, a participation issue that Sumption laments.

He also correctly places the blame at the door of the British electoral system:

“A move to proportional representation at parliamentary elections would weaken the duopoly. It would encourage more and smaller parties. It would give the established national parties a strong incentive to broaden their appeal beyond their base”

Throughout the book Sumption presents as a classical liberal (something perhaps reinforced by his recent comments about the UK lockdown) and somewhat of a originalist. His thoughts about the growing power of the judiciary are interesting, but feel lacklustre. Some of the reasons that judicial power has grown are because of the failure of politicians to mediate in the political process. The senior judiciary are not involved in these issues out of choice, they are clearly uncomfortable being there. Yet, Sumption is undoubtedly right about the reasons for this – only electoral reform can create a political atmosphere that values compromise over command. This is an interesting read, if not entirely from start to finish.

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