Saturday, 12 October 2019

Solving controversial problems - the judicial and the political roles - two eminent views

Jonathan Sumption, a retired Justice of the Supreme Court, delivered the 2019 Reith Lectures - earlier post of 25 June and see BBC's annual Reith Lectures

Lord Sumption followed up the lectures by publishing a very readable book - Trials of the State: Law and the Decline of Politics.

The book is based on the lectures, with additions and modifications provoked by the discussions which followed, and some expansion of points that could not be accommodated within the half-hour broadcast slots.

The subtitle of the book
"Law and the Decline of Politics" fairly describes the contents. The law is the tool by which the State imposes its will. A lawyer's job is to state what the law is. But Sumption is interested in a different question. What makes the law legitimate?  Democratic institutions once lent legitimacy to laws, even in the eyes of those who disagreed with them. For a number of years, public confidence in such institutions has been draining away.

To answer a considerable number of questions, people turn to the courts to offer solutions.  For example, recent years have seen litigation aimed at challenging legal topics which perhaps should be addressed by Parliament.  Examples include the position of those who wish to assist another to end their suffering from serious medical conditions, and cases such as Charlie Gard where some think that the parental role was either reduced to a minimum or overridden entirely. Sumption argues that there is a price to be paid for passing such problems to the courts. Judicial legislation lacks legitimacy, and legitimacy is the essential glue that makes us a political community.  In a free society, there will always be conflicting interests and opinions.  Sumption argues that only a political process can resolve these differences.  It's a time to return some of the problems to the politicians.

Sumptions' views need not come as a surprise. Prior to taking up appointment as a Justice of the Supreme Court, he delivered the 2013 Azlan Shah lecture where he expressed similar views in the context of human rights  - My thoughts (as a citizen) on Lord Sumption's Azlan Shah lecture.

On 8 October, Lady Hale, currently President of the Supreme Court, delivered the Dame Frances Patterson Memorial Lecture for which Lady Hale chose to tackle Lord Sumptions's views as expressed in the Reith lectures and his book.

Lady Hale at the Dame Frances Patterson Memorial Lecture 2019, Middle Temple-  Law and Politics: A Reply to Reith

Lady Hale's lecture is a powerful counterpoise to the Reith Lectures. Lady Hale concluded by saying:

"We can all agree that there are many big picture decisions for which political processes are much more suitable than judicial ones. But, like the late and much lamented Lord Bingham, I reject the suggestion that judicial processes are not also democratic processes. They are a necessary part of the checks and balances in any democratic Constitution. And it is also necessary to point out that the history of many countries teaches us that political processes, just as much as judicial ones, can be used to promote quite different values – oppressive or discriminatory ones. The task of any modern Constitution is to keep these processes in balance. But in our Constitution the fundamental principle is Parliamentary sovereignty, which both the executive and the courts must respect. We in the courts will always ultimately do Parliament’s bidding. Forgive me if I don’t quite understand what the problem is with that.  

Is there a moral for judges in all of this? The courts have to go on doing their job – the job which Parliament has given them or which the common law has expected of them for centuries. They have, I hope, to be conscious of their own limitations – both personal and constitutional - and thoughtful about their role. But I take comfort in the fact that in the Supreme Court we are not alone – there are always at least five Justices sitting on a case and we work collectively together to reach the right result. There is safety in numbers."

Dame Frances Patterson (1954 - 2016)

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