Problematic Tory assumptions
Jonathan Sumption 'Trials of the state: law and the decline of politics' Profile Books, 2019, pp112; £9.99
In July I argued in this paper that what was occurring over Brexit was a political crisis - one of the Conservative and Labour parties - and not a constitutional crisis, which implicated the structural balance of the great formal institutions of the state (monarchy and executive power, House of Commons, House of Lords, judiciary).1 Since then things have moved on, and in addition it looks as though I was wrong: Johnson and his team turn out to be ‘revolutionaries’ on the constitution and, if they are allowed to get away with their schemes and succeed in winning a ‘people versus parliament’ general election, the British political regime will come to look more like those in Poland and Hungary.
I was certainly wrong when in July I wrote: “There is not the slightest likelihood that the courts would be willing to enjoin the prime minister against advising the queen to prorogue.” In the event, the supreme court did (after the fact) quash the prorogation advice. This was an intervention of the judiciary in a field it has traditionally left untouched - parliamentary management by ministers using the royal prerogative to discipline MPs.
At the same time, John Bercow has persistently acted independently of government - very unusual conduct for a speaker of the House of Commons, though technically justifiable because the speaker is technically the servant of the House. Hence, Boris Johnson’s supporters have argued that, once they have won their ‘people versus parliament’ election, they will radically curb the powers of both the courts and the speaker (and perhaps increase the already-heavy government control of the House of Commons agenda).
That would be a constitutional revolution - a sharp, radical change in the constitutional structure. It would tend to reduce the right to electoral representation to only a vote once every five years to (indirectly) elect the prime minister from among candidates selected by the press barons, by voting for your local ombudsman-MP, who proceeds to delegate the legislative power irrevocably to the PM and the ministers he or she appoints.
In a sense, as I already wrote in July, the Brexit project from autumn 2016 had already become the beginning of a constitutional coup by the Tory newspaper proprietors against parliamentary sovereignty, by asserting that a referendum explicitly declared to be advisory was binding - and that no sanctions could be applied to the plain lies knowingly printed by newspaper editors in the referendum campaign.
To say that we are in the territory of a constitutional crisis means that the workers’ movement as much as any other political trend needs to discuss the distribution of power among the institutions, and begin to propose our own ideas on this question. To pose the issue merely in terms of ‘workers’ councils’ is to fail to engage at all, since it is clear enough that mass strikes and workers’ councils are not on the immediate agenda. Then the result is that the Labour Party is blown between short-term, ‘parliamentary cretinist’ manoeuvres as responses to the capitalist parties’ latest tactics. These lack a clear, narrative thread, which can be explained to masses to counter the fraudulent narratives of the capitalist parties and media.
Meanwhile the far left either tail-ends the liberals (Alliance for Workers’ Liberty, Socialist Resistance, and so on) or tail-ends the national-populists (the Morning Star and its Communist Party of Britain most clearly, the Socialist Workers’ Party and Socialist Party of England and Wales muddle-headedly, and so on).
To intervene at all effectively, we need to start from the terrain on which the fight is going on - albeit doing so with our own political goals in mind.
Tories and judges
Tory politicians have been arguing for years that the judiciary has become unduly interventionist in politics. They mean by this specifically interventionist against Tory ministers’ exercise of their powers. The hypocritical quality of the argument is reflected in their not advocating any reduction of judicial review of the decisions of local authorities - let alone any restoration of the powers which have been gradually stolen from local authorities since the Heath administration in 1970-74, or any reduction of judicial interventionism in the affairs of trade unions.
What has mainly been targeted by these Tory polemics is the Blair government’s Human Rights Act 1998 - and, lying behind it, the European Convention on Human Rights. (It is necessary to flag up, as usual, the fact that the ECHR is quite separate from the European Union, apart from the fact that the EU has signed up to it.)
Trials of the state is an intervention in this discussion. It is the book of Jonathan (Lord) Sumption’s May-June Reith lectures. Lord Sumption started life as an academic historian, and has continued, gradually, to produce volumes on the ‘Hundred Years War’ (1337-1453). In 1979 he and Sir Keith Joseph co-authored a polemic against the idea of equality; and in 2000 he said that “basically I’m a Tory who votes Labour much of the time”.2 He took the ‘law conversion course’ and bar vocational course while still teaching, was ‘called to the bar’ (qualified) in 1975, and went on to make a fortune in commercial practice. He was (unusually) appointed directly from the bar to the supreme court (and hence to the peerage) in 2012. He retired from the bench in 2018 and has thus escaped the rules which require serving judges, when they are speaking or writing extrajudicially, to remain politically very bland.3
The main burden of the argument of the lectures and this book is against judicial overreach and ‘over-extension’ of ‘human rights’. However, Sumption voted judicially with the majority in the 2017 supreme court decision in Miller v DEXEU, that article 50 could only be triggered after parliamentary legislation.4 He had retired by the time the recent prorogation case came before the court, but he wrote in The Times on September 24 supporting the decision5 - and in the Evening Standard on October 11, denouncing the referendum as “a completely illegitimate way of resolving an issue that is fundamental to this country’s interests ... The old trope that referendums are instruments of division and despotism has rarely been so completely vindicated.”6 These ideas are also present in the Reith lectures and this book, and led some Brexiteer academic lawyers who were otherwise favourable to Sumption’s ‘limits of law’ arguments to criticise him on this front.7
Cards on the table. I am also a ‘limits of law’ advocate, and I also think that Sumption is right (chapter 2) that ‘winner takes all’ is a problematic decision procedure and that, hence, referendums are anti-democratic and that there is also a need to limit undue trust in judges and in judicial decision-making. But the other propositions in the book detract from these sound claims in favour of propagating Tory historical myths and modern ideologies, and overall, the book is just badly argued.
In the preface, Sumption begins with the major claim that “The law is the tool by which the state imposes its will” (pix). This is something that is violently debated among academic lawyers.
Law can alternatively be claimed to rest on popular consent (and Sumption comes back to making that argument later in the book). Or it can be claimed to rest on ‘natural law’, meaning an internal logic which grows in the last analysis out of fundamentals of physical and human biological nature, constraining the possible set of rules: for example, an Act of Parliament cannot ‘repeal the law of gravity’; and, more extensively, the attempt to prohibit alcohol in the US (1920-33) proved practically unenforceable and undermined the authority of law - in the future, people will probably say the same of the attempt to prohibit other recreational drugs. Alternatively, law can be said to be merely an ideological cover for the personal preferences of judges - and Sumption uses that analysis in relation to non-Conservative judicial decisions (the large C here is intentional).
What Sumption is offering is a particular variant on the ‘command positivist’ theory of law, taught (and generally criticised) in modern law schools on the basis of the work of John Austin (1790-1859, professor of jurisprudence at the new London University). In fact, it goes back to Thomas Hobbes (1588-1679, most famously in his 1651 Leviathan), and before him in turn to Saint Augustine of Hippo (354-430, most clearly in his late Unfinished work against Julian of Eclanum): law can only be law if it is a command from a determinate superior (god or god’s vice-regent on earth), and neither customary laws nor ‘natural’ laws are ‘real law’.
Sumption’s particular variant goes back to Roger Scruton’s The meaning of conservatism (1980): “The law is the will of state, and the domestic expression of its power.”8 To acknowledge this echo from Scruton is to flag up the fact that Sumption’s starting point is not merely Conservative, but high-Tory.
There were five Reith lectures - reflected in the book in five chapters. Chapter 1, ‘Law’s expanding empire’, claims that law has since the 19th century expanded at the expense of “custom and convention” - and that it has done so partly because of the development of “broad-based democracy” since the 1860s, leading to expanded expectations of the state, and partly because our (human) technical capabilities to interfere with each others’ lives have increased, but not our ‘solicitude’ for each other (pp16-17). More law, he argues, means more state power - because the state merely “is us” (p19).
It was an observation made by David Robertson in his Judicial discretion in the House of Lords (1998) that senior judges who had at the bar worked for government, as Treasury Devil or otherwise, tended to be more sceptical about the motives of ministers and officials than those whose careers at the bar had been mainly in the commercial or property fields. Sumption’s claim that the state “is us” is an extreme form of this tendency of commercial lawyers to be unduly generous to government. It dematerialises altogether the official armed bodies (most notably the police) and the bureaucracy from the Sir Humphreys down to the jobsworths in the low levels of the home office who choose how to implement the ‘hostile environment’, and their potential abuses of power.
The historical argument about expanding expectations of law is merely rubbish. It would only be necessary to dip into the medieval statutes in the statutes of the realm - let alone the fat volumes of canon law enforced by bishops and archdeacons’ courts, and the multifarious local regulations of boroughs and manors - to see that the medievals had as high expectations of legal regulation as moderns, but just implemented these in different ways.
Sir Stephen Sedley has made the point in reviewing the book that the ‘administrative law’, which Sumption in the Reith lectures said dated to the 1960s (the book tones this claim down), goes back certainly to the 1600s.9 Imagined gardens of Eden, from which ‘modernity’ and the regrettable entry of the masses into politics evicted us, are commonplaces of high-Tory ‘thought’ ...
Chapter 2, ‘In praise of politics’, is the real core of the book’s arguments. It starts with the circumstance that politicians have traditionally had and still have a bad press. The problem, he argues, is how to control the potentially oppressive character of majority rule without undermining the idea of democracy.
The framing point is that people obey the state because of the legitimacy of its decision processes. It is necessary for this to happen for us to live together without the “systematic application of force”: ie, Hobbes’s “war of all against all”. The legitimacy of law works, according to Sumption, for two reasons which, I think, are not quite consistent with each other.
The first reason is “collective identity” - that is, without making the point fully explicitly, nationalism. Sumption had argued for national identity as a ground of legitimacy in ‘historical’ lectures given in 2013 about the UK union, and in an interview with the Evening Standard about human rights in 2015.10 The idea continues to echo in this book.
The other line of reasoning is public acceptance of the fairness of the decision processes.
The inconsistency here is that legitimacy arising from nationalism need not involve perceived fair decision processes at all - witness Nazism as an extreme case. Conversely, legitimacy arising from acceptance or perception that the decision processes are fair need not be national. Witness, in fact, the case of the United Kingdom - clearly a multinational state - in those periods in which the union was relatively politically stable; there are other examples. There have been periods in which both the European Communities and the United Nations had this sort of legitimacy.
Past this point, we arrive at Sumption’s argument for diluting majority rule, on the ground that pure majority rule, by denying any claim to the minority, would destroy political community. This argument takes us back to Hobbes and his argument for the danger of the ‘war of all against all’ as the ground for the absolutist state.
The true objection is that pure and exclusive majority rule, excluding all claims of the minority, inevitably turns into the rule of the ‘majority of the majority’ - and behind that of the ‘majority of the majority of the majority’ - in other words, the rule of a minority. Witness, for an immediate example, the effective tyranny of the most extreme wing of the Brexiteers.
Sumption’s first route to diluting majority rule is the system of electoral representation, following the arguments of James Madison (1751-1836) and Edmund Burke (1729-97) that an assembly of representatives would be less likely to act for short-term, sectional interests than an assembly of the whole people. This is, he argues, a form of beneficial elitism (pp26-27).
Further, political parties have the same effect: because they are driven to assemble coalitions in a political marketplace, they are also driven to produce proposals which are ‘least worst’ and hence accommodate minority views, rather than ‘winner takes all’ operations, like referendums. Sumption admits his argument is weakened by the decline in the number of members of political parties, which leads to them being (in his view) captured by ‘extremists’ and becoming “unrepresentative” (pp31-32).
Contrary to Sumption’s account, politics is not merely compromise and coalition-building. It is also persuasion. People can and do change their minds. The procedural forms of politics therefore have to allow for the right to do so (outside the very limited class of decisions which require immediate execution).
Unrepresentative parties, Sumption argues, result in the expansion of judicial law-making. This has always existed, but has increased either in the “last half century” or in the “last three decades” (both at p34). He gives a series of examples. The 2017 Unison case on judicial fees was ‘orthodox’, because MPs would probably not have voted for the regulations if they had been told that the purpose was to deny the rights granted by other statutes (pp36-37). On the other hand, the 2015 decision on The Guardian’s Freedom of Information Act claim, which revealed the Prince of Wales’s lobbying on planning decisions, was wrong, because the legislation made the minister judge of the ‘public interest’ in revealing the information or not (pp37-38).
A variety of other decisions are hand-waved over as problematic, before he argues that the Miller decision on activating article 50 was correct, because it asserted parliamentary sovereignty. But the loss of legitimacy of the judicial decision through overreach threatens to lead to the introduction of political ‘confirmation hearings’, as in the US, which would be undesirable (p41).
The chapter concludes with praise of “opacity, inconsistency and fudge” as “inseparable from the kinds of compromises that we have to make as a society if we are to live together in peace” (p42).
Chapter 3, ‘Human rights and wrongs’, explores the European Convention on Human Rights. Sumption is here a lot less antagonistic to the ECHR than he was in 2015. He makes the conventional points that a good many ‘human rights’ decisions complained of by the press (meaning, mainly, by the Daily Mail) are not either principled (the Islamist Abu Qatada would not have been extradited before the Human Rights Act) or not that serious (as in the case of government failure to legislate any procedure for removal from the sex offenders register) (pp45-46). He is for certain fundamental rights, which he finds in William Blackstone’s 1764-67 Commentaries on the laws of England11: “rights to bodily integrity, property, free speech12 and immunity from arbitrary arrest, together with a right of access to the courts to enforce them” (p47).
But “to say that some rights are inherent in our humanity, without elaboration, is really no more than rhetoric” (p48). Rights are “the creation of law ... and therefore necessarily a matter of political choice” (p49). He argues that only two sets of rights are fundamental: some “because without them social existence is not possible” - “freedom from arbitrary detention, physical injury and death, equality before the law and ... recourse to impartial and independent courts”. The second class is “rights without which a community cannot function as a democracy ... freedom of thought and expression, assembly and association, and the right to participate on equal terms with everyone else in fair and regular elections” (p50).
I flag up at this stage that the argument for the first class of rights is completely senseless ultra-Hobbism. Many human societies live, and have lived as societies, without freedom from arbitrary detention, and the rest of the rights quoted, down to and including access to impartial courts. The reason is that, contrary to Hobbes’s assumptions, human beings are not wildcats, which hold territory as individuals and come together only for episodic sex, but social animals, who cannot avoid living in social groups.
The second class is certainly true - political democracy as such requires freedom of communication (speech and so on) and of assembly and association, and the right to participate in fair and regular elections. But this class of rights is regularly denied by the English constitution and quite often by the courts.
Sumption objects to the Strasbourg decision in Hirst v UK (2005) that prisoners could not be deprived of the right to vote without good reason. He thinks that Strasbourg should have deferred to Westminster after the latter made clear it would follow the Daily Mail’s denunciation of the decision (pp68-69). But this was precisely about the right to vote, which Sumption says on p50 is a fundamental right. We should be particularly clear about this, because denying prisoners and ‘felons’ the right to vote has been an extensively used tactic in class and race gerrymandering in the USA, and the case of Lady Porter in Westminster means that we should not imagine that British politicians are above such tactics.13
The case is all the stronger in relation to freedoms of speech, assembly and association. I have written at length before about the tendencies of both parliament and the judiciary, since the 1960s, to undermine freedom of association.14 For freedom of assembly, if Sumption really thinks that this is a fundamental right necessary to a democracy, he should be willing to characterise the 2007 (court of appeal) and 2009 (House of Lords) decisions upholding ‘kettling’15 as violations of the judicial oath.
The third point in this territory is that Sumption does not in this argument mention the right to peaceful enjoyment of possessions (First Protocol to the Convention, Article 1 - or ‘A1P1’ in legal usage). The reason is clear: A1P1 cannot be justified on either of the ‘fundamental rights’ grounds Sumption offers, unless ‘possessions’ is interpreted very much more narrowly than the text justifies (let alone the case-law).16
Insofar as there is a justification for A1P1 at all, it has to be that the recognition of private property and free markets is necessary for judicial independence, and therefore for the protection of the other rights. This is a view openly defended by US libertarians, and one which had support elsewhere in the 1980s-90s, but is now rather dated, because of the plain failure of property rights-based libertarianism to deliver the other rights.17
In essence, Sumption’s complaint about the ECHR and its judicial interpretation here is that article 8 of the convention, which guarantees “the right to respect for his private and family life, his home and his correspondence”, has been too widely interpreted. He shows himself particularly concerned with the questions that have been raised about the criminalisation of suicide, and about the prohibition of abortion in Northern Ireland (pp57-66). In chapter 4, on the US, he similarly has special concern over the anti-democratic or anti-political character of Griswold v Connecticut (1965), which struck down a contraception ban, and of Roe v Wade (1973), which struck down abortion bans (pp84-86).
The argument here, in relation to the ECHR, is exceptionally weak - far weaker than the argument against finding a privacy right in the US ‘due process’ clause. For the ECHR contains an explicit guarantee of the right to “private and family life”. The difference is that Sumption is arguing from inexplicit Christian commitments to say that something (not clear what - perhaps the right of parents to insist their children be educated in church schools?) is the subject of a right to privacy and family life properly included in ECHR, but abortion, suicide and contraception are not.
It would be legitimate to argue that only rights closely connected with democratic decision-making procedures should be ‘entrenched’ in the way the ECHR does so. But that is not Sumption’s argument. Equally, it could be argued that the ECHR was always characterised by excessive indeterminacy in the content of the rights and the various balancing clauses. But, again, that is not Sumption’s argument. His point seems to be that the very broad words of article 8 should be read more narrowly to fit with the Christian conservative (small c here) commitments, which are taken to have been held by the 1950s drafters of the ECHR.
I have already referred to Sumption’s critique of the development of a ‘right to privacy’ in US constitutional law and its relation to contraception and abortion. He does also make passing reference to examples of judicial overreach in the USA less tied to conservative-Catholic dogma: the 1857 Dred Scott case on slavery, race and citizenship (p90), and the ‘Lochner-era’ cases of around 1897-1937, in which the supreme court struck down a wide variety of labour and consumer protection state legislation as violating ‘substantive due process’ (p86). But the point interlocks with the ECHR issues - and those of the EU. In the first place, the guarantee of the right of private property in ECHR A1P1 provides a shorter route to striking down regulatory legislation than ‘substantive due process’. But Sumption does not seem to object to this provision.
Chapter 5, ‘Constitutions, new and old’, extends the argument by arguing against the common idea that problems with politics mean that Britain needs a ‘written’ constitution. Here Sumption shows more of his political colours. His conception of the British constitution is one in which “Parliament is an instrument of government. It is there to support the executive, or change it for another that it can support” (p98). Here the role of scrutiny and amendment of legislation disappears. The MPs’ only proper options are to choose between governments.
This is in his view an outcome of British history, in which the monarchy “gradually and on the whole peacefully” ceded power (p99) in a “long and unbroken constitutional history” (p100). This is more historical nonsense, which Sedley again points out: Sumption is here erasing a full-dress civil war in the 1640s, a victorious Dutch invasion in 1688, followed by three years of open warfare in Scotland and Ireland and nine years of European war (with the reversal of the revolution of 1688 figuring also in French aims in the wars of 1702-13, 1740-48 and 1756-63). Another Tory imagined Eden.
This false narrative of British long-term gradualism then figures as the ground for rejecting codification of the constitution - with British devolution here a better ‘gradualist’ solution than the legal conflicts over Catalonia under Spain’s codified constitution. On this one we should wait and see: Cameron’s 2014 knife in Gordon Brown’s back (the referendum and his English nationalist speech, which secured the Scottish National Party majority in 2015) may yet lead to an illegal Scottish UDI: under those circumstances, will Britain do better than Spain?
“All political systems,” Sumption says, “are aristocracies of knowledge. Democracy is only different, in that the aristocracies are installed and removable by popular vote” (p106). This is again old-fashioned Toryism, though also Weberianism and later the arguments of fascist Robert Michels. He sees the rise of populism (and hence the Brexit vote) as a response to the contradiction between this ‘reality’ and the ‘illusion’ that MPs should be ‘representative’.
What, therefore, he wants to do is restore the elite control, which has been lost through the major parties losing membership and hence being ‘colonised’ by “hard-edged zealots and entryists”. His solutions are to introduce proportional representation, and to enforce coalition government and compulsory open primaries for parliamentary candidates.
The idea that these ‘solutions’ will get rid of ‘extremism’ illustrates just what is wrong with the ‘aristocracies of knowledge’ variant of natural inequality theory. That PR does not enforce centrist government is transparent in Israel - and even the moderated forms of PR found in Italy and Germany, with entry thresholds and so on, can now be seen not to do so.
It was an attempt to approximate the open primary model which allowed Jeremy Corbyn to become leader of the Labour Party. Indeed, the supposed “zealots and entryists” produced a massive rise in Labour Party membership - contrary to Sumption’s underlying diagnosis of its causes.
The fact is that it is only possible to be a leader if enough people are prepared to follow you.18 What Sumption is complaining of is that not enough people are prepared to follow the ‘moderate’ (Tory, Catholic-inflected) ‘centre’. PR and open primaries will not solve this problem.
Moreover, his account of the relation between the hollowing-out of politics and the rise of law is the reverse of the truth. Rather, the party generals have lost their soldiers. They have done so because they, and the courts, denied the local initiative through which the party rank and file can actually experience the politics of compromise, coalition-building and persuasion. It is through that experience that the ranks can throw up actual, competent political leaders, as opposed to the bland-leading-the-bland Blairite opponents of Corbyn in 2015 or the irresponsible Oxford Union Committee-trained ‘knife operators’ in the Tories.
Sumption’s inversion of the causal process means that he cannot accept what would actually be needed to reverse the decline of public political activism: that is, to get rid of the anti-union laws and the Political Parties and Elections Acts, to abolish rate-capping and most other central controls on local government, and to savagely restrict judicial review of local government and voluntary associations.
But that would require looking at politics from the standpoint of actual democracy, of promoting the broadest possible engagement in self-government (and thus, of the interest of the working class in democracy) - not from that of a Tory conception that ‘democracy’ can only consist of choosing your ‘aristocratic’ governors.
. ‘Constitutional or political’ Weekly Worker July 18.↩︎
. I Irvine, ‘Jonathan Sumption: donnish but deadly’ The Independent October 11 2011.↩︎
. Though he seems to have partly avoided complying with the convention anyhow. See, for example, ‘Britain can ditch European human rights laws, says top judge’ Daily Mail September 21 2015 - a very clear party-political intervention.↩︎
.  UKSC 5.↩︎
. ‘Supreme Court ruling is the natural result of Boris Johnson’s constitutional vandalism’.↩︎
. ‘Forget emotion, look at the facts. The price of Brexit is too high’.↩︎
. Eg, Richard Ekins: https://judicialpowerproject.org.uk/category/posts/series/commentary-on-lord-sumptions-reith-lectures.↩︎
. London 1980, p75.↩︎
. Sedley, ‘A boundary where there is none’ London Review of Books September 12.↩︎
. Lectures: www.supremecourt.uk/docs/speech-131105.pdf; Standard as reported by Mail above (note 4).↩︎
. Vol 1, chapter 1 (pp117ff).↩︎
. In fact, it is stated a good deal more narrowly by Blackstone.↩︎
. US: see, for instance, M Day, ‘Why socialists should care about felon voting laws’ Jacobin September 21 2018. Lady Porter: https://en.wikipedia.org/wiki/Homes_for_votes_scandal.↩︎
. ‘It is not enough to call for abolition of anti-union laws’ Weekly Worker April 7 2010; narrower, but in more depth, is ‘Free association versus juridification’ Critique Vol 39, pp53-82 (2011).↩︎
. Austin v MPC  EWCA Civ 989  UKHL 5.↩︎
. ‘Possessions’ in the text, but ‘property’ in the subhead; in the French text, ‘propriété’ is in the subhead, while both ‘biens’ (‘goods’) and ‘propriété’ are in the text. In AXA General Insurance v Lord Advocate  UKSC 46, the UKSC gave the terms an extremely broad meaning.↩︎
. M Macnair, ‘Law and state as holes in Marxist theory’ Critique Vol 34, pp211-36.↩︎
. Cf M Macnair, ‘Socialism from below: a delusion’ Weekly Worker August 13 2015.↩︎