In his second Reith Lecture, Jonathan Sumption has turned his attention to the relationship between parliament and the courts. He sets out how governments gain their legitimacy through parliament and the people, and in doing so, critiques the courts for being increasingly willing to trespass on terrain that he suggests is rightfully that of the political powers, but ultimately resting upon the people’s authority. You can read about the first lecture here.
In Sumption’s democratic model, parliament is the necessary moderating arena. The governing party, given authority and power through its democratic mandate, has its legislation legitimised in the eyes of the nation through it being passed by parliament, who serve to ‘accommodate the divergent interests and opinions of citizens’. He points to James Madison, the American founding father, who argued that ‘the public voice pronounced by the representatives of the people will be more consonant to the public good’ avoiding the ‘narrowness of soul’ that comes from the peoples’ tendency to focus on narrow, short term issues.
Consequently, when parliament delegates control over the ‘levers of power’ to the people through mechanisms like referendums, it reduces politics to a ‘zero sum game’ that moves public opinion towards absolutes, and against dialogue and moderation. Sumption suggests that such pure forms of democracy reveal how it has an ‘inherent tendency’ to cannibalise itself, and that representative politics is how the potency of majoritarianism is necessarily diluted.
His greater concern in this lecture, however, is not with parliament’s delegation of its powers, but with what he says is the courts’ usurpation of parliament, and consequently, the people. If the people having too much say is a bad thing, so is their having too little. Sumption recognises the courts are the final bulwark against majoritarian rule with its ‘formidable bias in favour of individual rights’ and ‘traditional social expectations’, governed by ‘professional judges…who are not accountable to the electorate’. Despite this, he is wary of their trespassing into the ‘realms of legislative and ministerial policy’ through the creation of a ‘fundamental law’.
Lord Sumption’s views, which he claimed were not apparent in his first lecture, are clearly on display here. He analyses the principle of legitimacy, where the courts compare the actions of the executive against the language of the enabling legislation, and decide if the power has been used legitimately. Sumption suggests that the Supreme Court’s interpretation of this principle has been expansive, giving it significant control over government action, and meaning that ‘law is now the continuation of politics’. In attempting to demonstrate this, Sumption claims to draw a distinction between two recent decisions of the court.
In the first,Unison v the Lord Chancellor, which concerned the setting of fees to access employment tribunals, the Supreme Court was faced with a minister who was setting the fees so high that many were unable to access them. In what Sumption called a ‘perfectly orthodox’ decision, the justices decided that Parliament could not have intended to give the minister the power to set disproportionate fees that meant people could not use the tribunals, and struck them down.
In the second, Evans v HM Attorney-General, a journalist had filed a freedom of information request to see letters sent by the Prince of Wales to government departments. This request was subsequently vetoed by a minister, exercising a power contained in the legislation. The Supreme Court decided that the circumstances which surrounded the veto were not those that parliament could have intended, and similarly struck down this decision. In this case, Sumption viewed the decision as one where the justices took an ‘expansive’, and implicitly, an illegitimate view of the rule of law, interfering with parliament’s authority.
It is not clear in Lord Sumption’s lecture why he feels that Unison was a legitimate exercise in the protection of rights, and Evans was a usurpation of the political process. Ultimately both decisions involved the courts overruling the ‘plain meaning’ of a statute in favour of a more substantive protection of rights. Why Unison is within the courts’ domain, and Evans is an illegitimate interference in a policy decision that should have been left to parliament, is not clearly answered.
In any event, Sumption places disproportionate weight on the ability of parliament to hold ministers, and the government, to account. Parliament has very few tools at its disposal by which to force ministers to account for their decisions, and even fewer to force them to change such decisions. Authority, once given away, is hard to rein back in. For instance, the shock over Oliver Letwin taking control of parliamentary business in the chamber for a single day in April shows just how used the government is to having dictatorial control over issues discussed in parliament.
Sumption’s view of parliamentary scrutiny also ignores the nature of a first past the post parliamentary system. One of the hallmarks of British government is the ability to get legislation passed, which is because the government tends to have a significant majority. This comes at a cost, which is that the government has huge levels of control over its backbenchers, through both the stick and the carrot. As Isabel Hardman has argued Why We Get the Wrong Politicians, this means that a truly determined government can force through most legislation if it wants to, closing its eyes and ears to scrutiny.
To prevent executive overreach, this means that the courts rightly intervene in areas like those Lord Sumption identifies, such as education and overseas development funds, provided there is a legitimate legal case. Simply because the executive is able to point to ‘strong public support’ for ‘harsher policies’ does not mean that a more moderate position imposed by the courts is democratically illegitimate. The implication of Lord Sumption’s argument is that the courts have ruled from their ivory towers, making the people feel as though their views have not been represented. What this ignores is that the people they have isolated, if they even do that, are the majority, who are rarely disappointed with the outcomes of the political process.
What these decisions do is elevate the quieter voices in society, those that don’t get heard in the bear pit of Westminster Palace, but do in the sedate courtrooms just across Parliament Square. And to suggest that the people feel that this is illegitimate ignores the fact that, other than the rare decision, most decisions don’t even excite the public. Public attention was most recently captured by Miller, where the judges ruled upon how the UK could begin the process of leaving the EU. Their interest was fleeting though, as after the broadcast of the proceedings in the Supreme Court, even the Daily Mail accepted that it was not an elitist coup, but a legitimate exercise of the rule of law.
It is difficult to agree with Lord Sumption, and accept that the law isolates the people and does not ‘accommodate our differences’. What the law has done is to constrain the most populist tendencies of the executive when it gets out of hand, forcing it to exercise moderation when all other political levers have failed to turn the government from its course. It means that, as Madison said, the government can have power, ‘but not too much.’