Here is an elegantly written antidote to the 2011 F A Mann lecture delivered by Jonathan Sumption QC who has now taken his seat as a Justice of the Supreme Court - "Judicial and Political Decision-Making: The Uncertain Boundary." (Lord Sumption made the speech after being selected for the Supreme Court but before being sworn in).
I do not propose to gloss in any way Sir Stephen's essay which concludes by saying of Sumption QC's lecture:
" ... the effect of the kind of critique advanced in this lecture is not neutral. It harms the standing of the judiciary and confidence in the law, just as it would do if a judge, naming no names and citing no instances, were to deliver a public lecture on the perils of judicial corruption. Smoke, in the public mind, means fire. Nobody who knows the history of English public law would deny that there have been decisions which smack at least as much of politics as of law: the condemnation of the Poplar councillors in 1921 for paying men and women equal wages, for example. But that is a long way from the charge that modern public law judges, lacking any jurisprudential compass, routinely cross the boundary separating law from politics."
There is more in the lecture: a critique of the European Court of Human Rights for trying to make one size fit all – a problem the court itself is well aware of and has been grappling with for decades – and a perfectly tenable argument that the modern growth of public law has been stimulated by a perceived deficit in the democratic process. But there is a possibility that the central allegation of repeated judicial intrusion into the business of government will be seen as a political incursion into the business of adjudication. One leaves the lecture reflecting that if we had parliamentary confirmation hearings for new judicial appointees (something Sumption rightly opposes), this is the kind of manifesto we would get and that politicians would probably applaud. What would happen to a candidate who stood up for the integrity of modern public law and for judicial independence within the separation of powers is anybody’s guess.
For me, Stephen Sedley ranks as one of the finest legal minds of modern times and he is a very fine writer. Upon his retirement, Sir Stephen's book "Ashes and Sparks: Essays on Law and Justice" was published.
See also the earlier Law and Lawyers post - "Judicial Review: Keep out of politics ... but can the judges do so?"
Other links - added 20th February: The UK Constitutional Law Blog has published "Lord Sumption and judicial responsibility" and "What role should judges play in the constitution Lord Sumption?" These articles look at the views of Lord Sumption as expressed in the F A Mann lecture. The first article is by Tom Adams - Law Lecturer St. Hilda's, Oxford and the second is by Stuart Lakin - Law Lecturer, Reading University.