July 20 2022

‘Brexit exposed fault-lines in our constitution, the pandemic has fractured these further’

‘Brexit exposed fault-lines in our constitution, the pandemic has fractured these further’

Jonathan Sumption: from his Reith lectures

With the day of the presidential election finally upon us, it is easy to look at our government and, in some small way, be grateful that we were not presented with such a candidate last year. While we may have a prime minister who is unfit for office for a smorgasbord of reasons, ranging from ideological (and marital) infidelity to inertia and indolence, we at least are not governed by an intellectually moribund reality TV star, known for playing a successful businessman just as he simultaneously flailed – and failed – to be one, with a crushing inability to empathise with anyone or anything beyond his immediate orbit. Johnson may be in the image of Trump, but it is a very refracted projection.

Yet for Americans, the sheer bombast of Trump makes the choice – and the threat – clear. There, the real concern is not if Biden will win the popular vote, or even if Biden should win enough votes in the Electoral College. The real concern is whether a combination of voter suppression, the pandemic, and a rigged federal court system will hand the election to Trump on a platter, playing Herod to Trump’s Salome. This is not a threat that Johnson and his coterie so obviously evinced last year. Before the general election, some of us warned that Johnson was a would-be authoritarian, with his attacks on the courts and his failed prorogation of Parliament showing an astonishing contempt for the values of a liberal democracy. Despite such cautionary tales, Johnson’s character as a bon viveur and a pseudo-intellectual saw him overcome whatever rumblings of concern some voters may have felt, while admittedly being aided and abetted by Labour putting forward the most catastrophically ruinous candidate for prime minister in British history. (When the dust has settled on this period of history, how much responsibility will rest on the shoulders of those complacent Labour MPs who nominated Corbyn for leader to ‘broaden the debate’?)

Regardless of Corbyn’s involvement, however, it is Johnson’s character that has paved the way for him to inflict the ‘most significant interference with personal freedom in the history of our country’, as Lord Sumption put it in the University of Cambridge’s Freshfields lecture last week. Breaking from his recent unfortunate habit of launching furious broadsides at the government from the pages of the Daily Mail, Sumption lucidly and concisely set out why this government’s style of governing is dystopian and authoritarian, choosing not to focus upon the ‘wisdom’ of the policy choices made by the government, but on how they have been made by ‘ministerial decree with minimal parliamentary involvement’, and what such a style of government means for the future of Britain.

Some readers (and listeners) could be forgiven for thinking, from the opening paragraphs, that Sumption had undergone a Damascene experience in regards to the role of the courts in a democracy. In his opening salvo, he refers to Simms, a decision of the House of Lords that limited ministerial authority granted by statute, with Lord Hoffman acknowledging that ‘fundamental rights cannot be overridden by general or ambiguous words’. Instead, if Parliament truly wanted to grant ministers unfettered power, it had to ‘squarely confront what it is doing and accept the political cost’.

This is not the approach that this government, and its enabling Parliament, has taken. Rather than use the pre-existing emergency legislation, the Civil Contingencies Act (CCA), which would have given government ministers wide-ranging, unilateral authority to react to the threat, powers that Sumption says ‘could not be wider’, it passed the Coronavirus Act, ‘specifically to deal with Covid-19’. Alongside this, the government ‘chose not to include a general lockdown power in the Coronavirus Act and not to use the power that it already had under the CCA’ to impose a lockdown, but to use the ‘much more limited powers’ contained within the Public Health (Control of Disease) Act.

As Sumption argues, it is not clear that this legislation gives the government such untrammelled authority. Crucially, it contains ‘no specific power under the Act to confine or control the movements of healthy people’, and, therefore, for the courts to interpret it as doing so ‘would… be inconsistent with the principle of legality… (and) contrary to the whole tenor of this part of the Act’. What is clear, however, is why the government has chosen this path, rather than that of the CCA. By relying on general powers, it was able to circumnavigate the challenge of ‘getting such a thing [as a lockdown power] through Parliament without further debate’, and to avoid the ‘high degree of Parliamentary scrutiny’ that the CCA would have required.

From here, the government has proceeded to enact a whole raft of measures that are ‘radically affecting the rights of individuals… without any Parliamentary sanction’, mostly through ‘exploiting existing regulatory regimes’. Belatedly, it would seem that Sumption has recognised the limits of parliamentary authority. In his Reith Lectures, delivered last year, Sumption extolled the virtues of Parliament, arguing that it is the best institution to ‘accommodate the divergent interests and opinions of citizens’, while he now castigates it for allowing ‘the Coronavirus Act to be steam-rollered through with no real scrutiny’, and for giving ‘ministers an easy ride’.

Despite recognising the limits of Parliamentary power, Sumption does not expressly draw the most obvious conclusion, which is that if Parliament cannot ‘live up to its high constitutional calling’, it is the courts that must step into the breach. Obliquely, he seems to recognise that it may be appropriate for the courts to strike down some of the measures taken by the government in response to the virus, saying that ‘the courts will I suspect be tempted to give the government more leeway than they are entitled to’, but he goes no further than that.

To the contrary, despite this whispered call for judicial intervention, the courts do not feature in any of the three lessons he draws his lecture to a close with. Instead, he first bemoans the way that the government can use ‘propaganda’ and ‘fear’ to justify invading our civil liberties, and how Parliament has ‘no control over its own agenda’ by virtue of its standing orders. Continuing in this vein, Sumption recognises that the ‘procedures of the House are not fit for a world in which the government seeks to shove MPs into the margins’. Such concerns are not novel. It has always been difficult for Parliament to keep a tight leash on a dominant executive, and this difficulty has only grown in recent years. The age of a ‘shared political culture and of ‘shared respect for the institution of Parliament’ has passed. We have been living in an age of executive supremacy and partisan strife for some time.

Nor is there anything to suggest that this age is coming to an end. instead, it seems likely that we are only at the beginning, executive power only likely to grow, and with it, the risk of incompetence and bad government. The seriousness of this is not something, Sumption rightly says, that ‘the British people [have] even begun to understand. They are unaware of how this may lead to a ‘radical and lasting transformation of the relationship between the state and the citizen’, and with it ‘an equally fundamental change in our relations with each other’.

In the absence of an independent-minded Parliament, it is only a powerful and engaged judiciary that can counter this acceleration of executive hegemony. Where powers are being exercised on the basis that the UK is still participating in WWII, as with the wartime emergency powers discussed by Sumption, the courts should exert their authority, finding that the conditions which justified such powers have lapsed, and with them, the powers themselves. Similarly, when the executive adopts irrational or ill-thought out policies, like basing the distribution of government largesse on ties of blood rather than proof of competence, they should be held accountable by the courts. Simms, the decision Sumption referred to at the outset of his lecture, showed how the judiciary can construct legally binding principles that constrain an expansionist executive. It would have been more edifying to see him use this lecture to develop that line of reasoning, rather than delivering a ode to discontent that seemingly concludes with accepting Britain’s fate as being one of an ‘authoritarian reality’.

Brexit exposed the fault-lines in the British constitution, and the pandemic has fractured these further. In the hands of despotic ministers, it is all too easy for the conventions, principles and values that form the bedrock of our constitution to be undermined. From here, society itself is undermined, with the ‘unequal impact of the government’s measures….eroding any sense of national solidarity’. The government’s response to the coronavirus has been filled with irrational policies, made in procedurally alarming ways, that show errant contempt for the limits that should constrain a minister’s powers. The courts are ably equipped to put a stop to such a style of governance. We should expect them to do so.