The former Supreme Court judge says we are in a situation with no constitutional precedentby Alex Dean / September 10, 2019 / Leave a comment
Britain is in the middle of a political and constitutional crisis. Brexit is upending our system of governance. Boris Johnson has shut down parliament for five weeks to evade scrutiny, triggering legal challenges, and this is only the most egregious example. Convention has been discarded in the new constitutional arms race.
How did we get here? And what is the remedy? Jonathan Sumption, the former Supreme Court justice, has some firm opinions. Sometimes described as the “cleverest man in Britain,” he earned a formidable reputation—and handsome sums—as a barrister and in 2012 received an unprecedented promotion to the Supreme Court straight from the bar. He served full-time until 2018, and this year delivered the BBC Reith Lectures on the sometimes conflicting roles of parliament and the courts, now published in edited form as Trials of the State.
His opinions have sometimes drawn the ire of liberal commentators. Although he voted remain in the Brexit referendum, he is sceptical about the European Convention on Human Rights, and the encroachment of legal rights on our democratic system. But few dispute his intellectual heft. In his spare time, he has written four volumes on the Hundred Years’ War.
Speaking down the line from France, Sumption discussed the dangerous constitutional territory we find ourselves in. What did he make of the prime minister’s tactics?
Boris Johnson “is putting forward ideas which are essentially those of a fanatic,” Sumption said, requiring surprisingly little encouragement. “Whether he is a fanatic himself is a matter on which there has been much speculation. I have no more knowledge of that than the rest of the public. But he has certainly got plenty of fanatics around him. We are getting statements from Downing Street like ‘We intend to sabotage this extension,’ and such like. If Al Capone had been in the habit of issuing press statements, they would have looked something like that.” Sumption is a considered man, which made his damning assessment more alarming.
The prorogation of parliament means that “the government is claiming to use the immense powers derived from the royal prerogative, powers which are only tolerable in a modern democracy because ministers are answerable for their use to parliament. Yet over a critical five week period in our history, they wish to be answerable for their use to no one.” This is “a situation uncharted by our past experience or our present constitution.”
How did we end up here? What are the underlying forces at play? Sumption chose his words carefully. The situation in his view has arisen “mainly because we adopted, on a question of really fundamental importance, a technique of decision-making—namely a referendum—which is purpose built to circumvent the political process. We are therefore not in a very good position to complain that the political process isn’t working well! Obviously it isn’t, and the reason is that MPs—who for the most part perfectly well understand the damaging consequences of withdrawing from the EU, especially without a deal—nevertheless still feel bound by the outcome.”
The mistake was to use a plebiscite in a parliamentary system. Two forms of democracy are competing and one is struggling to accommodate the other. “That is the fundamental feature of the political situation: we are now in a conflict between two competing sources of legitimacy.”
All this means that MPs are “disabled from performing their proper function of deciding what is in the national interest. But above all, they are disabled from performing the essential function of any political system, which is to accommodate opposing interests and opinions, and arrive at a result which maybe would have been no one’s first choice, but which everybody can live with.”
What should happen now? According to Sumption, there are limits to what can be done by the judiciary. Gina Miller will again fight the government at the Supreme Court. But Sumption said: “I have my own view, which is that the courts are not entitled to interfere in what is essentially a political issue and not a legal one… The Supreme Court would really have to turn itself into an arbiter of the political and not just the legal aspects of our constitution.” Ultimately the crisis is political and the answers must be also. This is in keeping with the thesis of Sumption’s lectures.
Beyond prorogation, what about the deeper sickness infecting our democracy? The referendum was only three years ago but already the landscape feels permanently changed. There is a sense that the political system simply no longer functions.
For Sumption, there are no easy answers. But “my view is that we need another referendum. I am opposed to referendums as such, because I think the political process is a valuable source of compromise, and I was opposed to this referendum because there were too many answers to the question posed other than ‘yes’ or ‘no.’”
But “it seems to me that having had one of them, and ended up in the current insufferable situation, it may well be that the only way out which both sides should ultimately accept as legitimate is to have another. How else can we answer the vital questions left unanswered in 2016… The British people have never been asked what our relationship with the EU should be if we leave. It would have been difficult to ask them in 2016, because at that time we had no idea what terms would be available and what problems would arise. We have a very clear idea of that now.
“The suggestion that a second vote would be undemocratic is extraordinary and disingenuous. The referendum of 2016 has not answered the question: how much are we prepared to pay to be out of the EU?”
Whether an accommodation can be found in this form or any other is an open question. The current most likely outcome is an autumn election, possibly followed by a referendum if Labour wins power. It may be that eventually we accept a second plebiscite as the only way to break the deadlock.
The immediate worry is further constitutional vandalism by a Johnson government bent on a “do or die” 31st October Brexit.
For Sumption there is no need to despair. “One of the cheering things that has occurred over the last few days is that the government, having tried to trample over the conventions of our shared political culture, has been frustrated in part by rebellion among its own MPs.” Politicians worked together to pass anti-no deal legislation within the space of just a few days. The “Benn bill” received Royal Assent on Monday.
We are in uncertain times. But “parliament has reasserted itself in a way that seems to me to offer some considerable hope for the future.” Perhaps our constitutional system has some life left in it yet.
Trials of the State (£9.99) is published by Profile
This interview was edited, with Sumption’s permission, to include comments made over email the following day