During the past hundred years, Britain has seen a fundamental shift in the relationship between politics, law and the people. The law has grown, now far from the constrained, minimalist role it played in the 19th century, its roots stretching into many, if not all, parts of modern life. This burgeoning of the law, and the explanations for it, form the basis for this year’s BBC Reith Lectures, given by the recently retired Supreme Court justice, Jonathan Sumption.
In his first lecture, entitled ‘Law’s Expanding Empire’, Lord Sumption considered how this expansion, ‘one of the most significant phenomena of our time’ has taken place, and why we now look to the law to resolve, according to Sumption’s reading, nearly every conflict in modern life.
In his opening lecture, Lord Sumption clearly wanted to adopt a tone of impartiality, a balanced approach which did not decry or acclaim this growth of the law but simply noted it. Certainly, there was no explicit condemnation of the way in which the law has evolved, other than his noting that we should be aware that the rule of law ‘does not mean that every human problem and every moral dilemma calls for a legal solution’.
It is not immediately apparent, however, whether Sumption succeeded in this ambition. The very name of the lecture suggests a critical view, because describing law as an empire conjures images of it as an omnipotent force, arbitrarily interfering in the lives of people, and expanding the reach of its domain through brute power, rather than dialogue and debate. It suggests that the law has had the temerity to step into areas more properly confined to the people and their elected representatives.
That Sumption was critical of the law’s expansionist tendencies, and yearned for a return to a less conflict-riven, more bucolic time, was put to him by the audience, including Baroness Helena Kennedy QC, although he responded by saying that he had not taken any such position, at least not explicitly. For Sumption to play the blushing maiden, denying any strident views, is surprising, given that his perspective on these issues is so broadly known.
Just before he took up his position on the Supreme Court, he delivered a lecture in Kuala Lumpur, where he suggested that the growth of judge-made law, especially in areas of social policy, was one which should be broadly discouraged, better left in the hands of the legislatures.
Similarly, many of his judgments, including one of his final decisions in Privacy International, and the euthanasia decision of Nicklinson suggest a reluctance to challenge Parliament’s supremacy. This line of decision-making, coupled with the language of his lecture, in which he spoke of the expansion of the statute books, the exponential rise in the number of lawyers and the ‘state’s persistent intervention in almost every area of our lives’ suggest that he is not overwhelmingly happy with the route the law has taken.
At the core of his lecture was the issue of freedom in society, and in particular, how our positions on moral conformity have been reversed. We have gone from interfering in the intimate lives of people, imposing strict rules on the conduct of individuals in the privacy of their own home, to the other end of the scale, legalising that behaviour, and imposing penalties on those who discriminate against people who behave in ways formerly deemed unacceptable by society. Yet, incongruously, we now also seek moral conformity in the public sphere, living in a ‘censorious age’ that requires the adherence to a single, societally approved view of what is correct, with the ‘pressure to conform more intense than it ever was in [John Stuart] Mill’s day’.
Sumption is right to point out the hypocrisy, and how we call upon people to ‘be themselves’ yet also castigate those who are themselves in a regressive, rather than progressive way; and this is especially so when they express such opinions, with ‘public and even private solecisms’ able to ruin a career. Sumption suggests that it is this ‘same mentality’ which leads us to seek answers from the courts in all areas, even where they are areas which historically existed to be judged only in the personal domain, expecting the courts to play the role of Solomon for every conflict that may emerge in the public or private sphere.
This is a legitimate point, with society having adopted practices from the more litigious population of the United States, expecting every conflict to be decided in a binary manner, rather than accepting that a free society requires shades of grey. Confusingly, however, Lord Sumption chose the Charlie Gard case to try and exemplify this.
Charlie Gard hit the headlines in 2017, a small child suffering from a genetic condition that tragically meant his death was near certain, and probably imminent. The hospital wished to turn off the life support, of the view, shared by most of the international medical community, that keeping Charlie alive was only prolonging his suffering, and that he had no real prospects of recovering. The parents, understandably, were devastated by this, and wished to pursue an experimental treatment that an American doctor had offered. The courts were therefore asked to decide what was in the best interests of the child.
Lord Sumption, acknowledging that he was not criticising the case, suggested that this decision was illustrative of the law moving to minimise ‘autonomous decision making by individuals’, reducing the responsibility of individuals for their own actions. There are clear examples of this, but Charlie Gard is not the most persuasive example of it. Although Charlie was his parents’ child, he was not their property, and his interests and theirs were not a perfectly overlapping Venn diagram. By the end of the litigation, there was a negligible prospect of his recovery in any meaningful way, with his treatment more an opportunity for experimentation than anything else. To suggest that his parents were the best people, in all the circumstances, to be the sole arbiter of what was in his best interests, given the complex nature of both the medical treatment and the condition, is not a strong argument. Their level of emotional involvement, understandably, meant that they would always be pulled towards doing whatever they could to save Charlie.
Instead, therefore, of being an instance of the inveigling of the law into areas where it does not belong, Charlie Gard more properly depicts our growth as society, recognising that personal responsibility and decision making is important, but not at the cost of society more generally. At times, personal decision making is more cruel than kind.
A better example for Lord Sumption to have used would have been that of euthanasia. All manner of euthanasia cases have come before the courts, and so far, they have been reluctant to make a clear determination on the form it should take. Instead, the judges have deferred to the legislatures, encouraging them to be the arbiters on this moral quandary. In the last decision on euthanasia to be heard by the Supreme Court, Nicklinson, the Supreme Court emphasised the unsuitability of the current position, but that they viewed the issue as one that was more suitable for Parliament than themselves, albeit reserving the right, should Parliament not act, to reconsider the issue.
To date, Parliament has not acted. No real change has been made to the law, and numerous appeals on the issue have been made to the courts, although the Supreme Court has yet to accept another case. This inaction demonstrates, to some degree, why the courts have become more interventionist. As Parliament has passed off powers to the courts through legislation such as the Human Rights Act, it has become less willing to make concrete decisions on issues of rights and morality. Consequently, the courts have stepped into the vacuum, making the hard decisions that the government and politicians are unwilling to take.
However, as the courts have been unwilling to grasp the nettle in all instances, it does leave some issues, like euthanasia, have not been resolved. This has meant that individuals, like the audience member who raised this issue, have been forced to decide between watching a member of their family who wishes to undergo euthanasia suffer in agony until they die, or risk prosecution by helping them. Lord Sumption accepted the unsatisfactory position that people were left in, but rather than suggest that the law should be changed, proposed that ‘the law should be broken from time to time’.
This is an astonishing acknowledgement, and one that is fundamentally incompatible with any sort of functioning society. If a judge is suggesting that a law should be broken, he is suggesting that the law is not fit for purpose. We shouldn’t count on particularly courageous people to break the law, risking prosecution and imprisonment, but should look to our legislators and judges to fix it. This is especially with euthanasia, as no one can argue that it is beyond the ken of man, given that other democracies such as Canada, Belgium and even some states in America have managed to find a way to legalise it.
The euthanasia question demonstrates the fundamental problem with Lord Sumption’s argument so far. Whilst the state may take a more interventionist approach than it has in past epochs, this is consistent with our growth as a society. We have risen from the Hobbesian nightmare of every man against his neighbour towards a more cohesive collective, no longer mere archipelagos of opinion. Society has become wealthier, more educated, more equal as the law has advanced and broadened. With this has come a loss of some freedom from state power, but possibly also a widening of freedom on the individual level within society more generally.
Perhaps we should take Lord Sumption at his word, and accept his future lectures will not support a return to ‘tired, old near-liberal dogma’ as one audience member asked, but will consider new ways in which we can tame the leviathan of the state. As the UK decides on its place in the world, choosing to return to government that is more intimately acquainted with its citizenry and in so doing, rejecting supra-national governance, this question is one that is more pertinent than ever.