An exploration of the boundaries between law and politics


Given Jonathan Sumption’s high-profile criticism of the UK’s foreclosure policies and their wider implications, the title of the former Supreme Court justice’s latest book may come as no surprise.

Yet in this interesting and timely collection of essays, only one – the last, “Government by Executive Order: Covid-19 and the British Constitution” – addresses the question of the government’s response to the pandemic. And it does not focus on the content of the measures, but on how to develop them and its constitutional implications.

The core of Sumption’s concern is that coercive powers have been conferred with minimal parliamentary oversight through the selective use of laws originally intended for other purposes. The result, he argues, is a dubious legal basis for incursions on the personal freedom of citizens.

Process matters, Sumption rightly argues. The risk in emergencies is that established models of accountability, both democratic (through legislatures and elections) and legal (through courts), will be weakened and the result will be a consolidation of accountability. irresponsible executive power. The government’s response to the pandemic “marks the transition to a more authoritarian political model that will survive the current crisis,” he warns.

This is a theme that Sumption examines elsewhere in Law in times of crisis. In “Brexit and the British Constitution” he argues that the recent polarization of British politics has resulted in “something more sinister, which I hope it is not too melodramatic to call a totalitarian trend in development”. Examples can be found, he claims, in personal attacks on officials and institutions that have raised concerns about the impact of Brexit, the expulsion of 21 Conservative MPs for not supporting the government, attacks on the judiciary and what he calls a straw in the wind, the threat to the BBC’s financial model.

Another area of ​​concern for Sumption is the proper role of the courts, at the center of his 2019 Reith Lectures in which he explored the boundaries between law and politics. In “Britain in the 1920s: The Future of the Constitution”, he asserts that “the courts no longer distinguish between cases where a minister does not have the power to act, or to act for a particular purpose, and cases where the judge just does not like the underlying policy ”. His criticism of this development is that parliament is the appropriate forum for the formation of politics, because it is the institutional means by which the electorate influences politics.

His account has been questioned, among others, by fellow judges Brenda Hale and Stephen Sedley. Sumption’s attempt to draw a sharp line between law and politics in a rule-of-law democracy, which requires power to be exercised only in accordance with the law, may, Sedley said, be an attempt to draw a line. border “where there is is none”.

Others might argue that Sumption’s rather binary approach overlooks the fact that in a democracy accountability can be best secured by both democratic and legal means, and that in parliamentary democracies, at least, the executive branch. can sometimes be allergic to both.

Elsewhere in Law in times of crisis, Sumption addresses other constitutional issues of intense contemporary importance, from the state of the union to the diversity of the judiciary. All are written in Sumption’s lucid and flexible prose and are characterized by his powerful advocacy for both historical and legal propositions. Unsurprisingly given Sumption’s brilliance as a lawyer, his plea can sometimes obscure the fact that the propositions he asserts are challenged as is the case, for example, in relation to his arguments regarding the role of power. judicial.

Overall, the book is an engaging and straightforward read, addressing issues of real public importance to Britain.

Law in times of crisis by Jonathan Sumption Profile Books, £ 16.99, 256 pages

Catherine O’Regan is Professor of Human Rights at the University of Oxford and a former judge of the South African Constitutional Court


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