In praise of politics

In recent years that politics has shied away from legislating and now the courts have taken on more and more of the role of making law

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By Lord Jonathan Sumption
Transcribed by Kevin Motaroki

The 18th century sage, Dr Samuel Johnson, thought that politicians were only in it out of vanity and ambition. Mark Twain believed that they were corrupt, as well as thick. George Orwell famously dismissed the world of politics as ‘a mass of lies, evasions, folly, hatred and schizophrenia.’ Statements like these are timeless clichés, faithfully reflecting the received opinion of every age, including our own. 

So, the title of this lecture may sound provocative, at least I hope so, because I want to make the case for the political process with all its imperfections. I argued in my last lecture that the quest for protection from perceived threats to our values and wellbeing had immeasurably expanded the role of the State in our lives. In a democracy the State, with its immense potential, for both good and ill, is ultimately in the hands of electoral majorities, hence comes the great dilemma of modern democracy, how do we control the potentially oppressive power of democratic majorities without undermining democracy itself? 

Let us start with some basic questions. Why do people obey the State? Fear of punishment is only part of the answer and not even the main part. Fundamentally, we obey the State because we acknowledge its legitimacy. Legitimacy is a vital but elusive concept in human affairs and it is a large part of what these lectures are about. Legitimacy is less than law but it is more than opinion. It’s a collective instinct that we owe it to each other to accept the authority of our institutions, even when we don’t like what they are doing. It depends on an unspoken sense that we are in it together. It’s the result of common historical attachments, of language, place and culture. In short, of collective identity. But even in an age when collective identities are under strain, legitimacy is still the basis of all consent for in spite of its immense power, the modern State depends, on a large measure, of tacit consent. 

The sudden collapse of the communist governments of Eastern Europe at the end of the last century was a sobering lesson in the importance of legitimacy. Even in a totalitarian State, civil government breaks down at the point where tacit consent fails and ideology cannot fill the gap. If that was true of the party dictatorships of Eastern Europe with their intimidating apparatus of social control, then how much more is it true of a relatively free society such as ours? 

The legitimacy of State action in a democracy depends on a general acceptance of its decision-making processes, not necessarily of the decisions themselves but of the method of making them. A free society comprises countless individuals and groups with conflicting opinions and interests. The first task of any political system is to accommodate these differences so that people can live together in a single community without the systematic application of force. 

Democracies operate on the implicit basis that although the majority has authorised policies which a minority deplores, these differences are transcended by their common acceptance of the legitimacy of its decision-making processes. Self-evidently, majority rule is the basic principle of democracy but that only means that a majority is enough to authorise the State’s acts. It isn’t enough to make them legitimate. That is because majority rule is no more than a rule of decision. It does nothing to accommodate our differences, it simply restates them in numerical terms. 

A democracy cannot operate on the basis that a bare majority takes a hundred percent of the political spoils. If it did, it would harbour large and permanently disaffected groups in their midst who had no common bonds to transcend their differences with the majority. A State based on that principle would quickly cease to be a political community at all. That is why all democracies have evolved methods of limiting or diluting the power of majorities. I’m going to talk about two of them. They are, really, the only two that matter. One of them is representative politics and the other is law. 

This city has a good claim to be the birthplace of representative politics. In the lead up to the great Reform Bill of 1832, Thomas Atwood and the Birmingham Political Union were at the heart of the campaign for parliamentary representation across the whole of Britain. Today, we could in theory abolish representative politics. In fact, we could abolish politics as we know it. For the first time since the whole citizenry of Ancient Athens gathered together in the Agora to transact public business, it would now be technically feasible for the electorate to vote directly on every measure. In fact, no democracy works like that. They act through elected legislatures. They do this not just for reasons of practicality but on principle. 

In one of his contributions to the federalist papers James Madison, the chief draftsman of the US Constitution, gave what is still the classic justification for the representative principle. A chosen body of citizens was less likely to sacrifice the true interests of the country to short term considerations, unthinking impulses or sectional interests. ‘Under such a regulation,’ he wrote, ‘it may well happen that the public voice pronounced by the representatives of the people will be more consonant to the public good than if pronounced by the people themselves.’ 

Many people applaud decisions of the Courts which wrong-foot public authorities. Sometimes they’re right to applaud but there is a price to be paid for resolving debatable policy issues in that way. 

In England, Madison’s contemporary, the politician and philosopher Edmund Burke, carried this idea further. ‘Parliament,’ he said, ‘was not a congress of ambassadors. Its members were there to represent the national interest and not the opinions of their constituents.’ Now, this might view might be called elitist, and so it is, but political elites have their uses. Professional politicians can fairly be expected to bring to their work a more reflective approach, a broader outlook and a lot more information than their electors, but there is also a more fundamental point. Nations have collective interests which extend over a longer time scale and a wider geographical range than are ever likely to be reflected in the public opinion of the moment. 

Today, for example, we face issues such as climate change, on which the interests of future generations differ radically from those of the current electorate. There are other issues on which the opinions of England, which is electorally dominant, differ from those of Scotland, Wales or Northern Ireland. Brexit is an issue which raises both of these difficulties. It was the 18th century political philosopher David Hume who first pointed out what he called the ‘incurable narrowness of soul that makes people prefer the immediate to the remote.’ If we are to avoid the same narrowness of soul, we have to take a view of the national interest which transcends snapshots of the current state of electoral opinion. 

Historically, representative politics has been by far the most effective way of doing this, while at the same time accommodating the differences among our people. This is mainly because of the pivotal role of those much maligned institutions, political parties. Political parties are the creatures of mass democracy. Writing at the end of the 19th century, when mass democracy was a new phenomenon, the great constitutional lawyer, AV Dicey, regarded them as conspiracies which sacrificed the public interest to sectional interests, and that is still a widely held view but experience has, I think, proved it to be wrong. 

Political parties have not usually been monolithic groups, they have been coalitions of opinion, united by a loose consistency of outlook and the desire to win elections. Politics is a marketplace. To achieve a critical size and to command the parliamentary majority, parties have traditionally had to bid for support from a highly diverse body of MPs and an even more diverse electorate. They have had to adjust their appeal to changes in the public sentiments or priorities which seem likely to influence voting patterns. Their whole object is to produce a slate of policies which, perhaps, only a minority would have chosen as their preferred option but which the broadest possible range of people can live with. This has traditionally made them powerful engines of national compromise and effective mediators between the State and the electorate. 

In Britain it is impossible to think about these things without an eye to the tumults of the past three years. There are serious arguments for leaving the European Union and serious arguments for remaining. I’m not going to express a view about either because they are irrelevant to my theme. I want to focus on the implications for the way in which we govern ourselves. Brexit is an issue on which people feel strongly and on which Britain is divided, roughly, down the middle. These divisions are problematic, not just in themselves but because they roughly correspond to other divisions in our society, generational, social, economic, educational and regional. It’s a classic case for the kind of accommodations which a representative legislature is best placed to achieve. 

A new reality

Europe has now become the defining issue which determines party allegiance for much of the electorate. As a result, we have seen both major national parties which previously supported membership of the European Union adjust their policy positions to the new reality. In a sense, that is what parties are for, it’s what they have always done, but there remains a large body of opinion, in both major national parties, which are strongly opposed to Brexit. One would therefore ordinarily expect the political process to produce a compromise not entirely to the liking of either camp but just about acceptable to both. Now that may yet happen but it has proved exceptionally difficult. Why is that? 

The fundamental reason is the referendum. A referendum is a device for bypassing the ordinary political process. It takes decision-making out of the hands of politicians, whose interest is generally to accommodate the widest possible range of opinion, and places it in the hands of individual electors who have no reason to consider any opinion but their own. The very object of a referendum is to inhibit an independent assessment of the national interest by professional politicians, which is why it might be thought rather absurd to criticise them for failing to do so. A referendum obstructs compromise by producing a result in which 52 per cent of voters feel entitled to speak for the whole nation and 48 per cent don’t matter at all. 

This is, after all, the tacit assumption of every minister who declares that the British people has approved this or that measure as if only the majority were part of the British people. It is the mentality which has created an unwarranted sense of entitlement among the sort of people who denounce those who disagree with them as enemies, traitors, saboteurs, even Nazis. This is the authentic language of totalitarianism. It is the lowest point to which a political community can sink, short of actual violence. 

In the last six months we have seen politics, in some small degree, reasserting itself. Parliament has forced compromise on those who feel that the referendum entitles them to absolute outcomes. If that process has been late, slow and incomplete, it is because of another factor which has been at work for longer and may prove even more damaging. This is the steep decline in public engagement with active politics. The turnout at general elections has been on a declining trend for many years. At one point in 2001 it fell below 60 per cent, the lowest ever. 

The attractions of law are obvious. Judges are intelligent, reflective and articulate… So as politics has lost its prestige, judges have been ready to fill the gap. The catchphrase that justifies this is the rule of law.

In the early 1950s political parties were the largest membership organisations in Britain. The Conservative Party had about 2.8 million members. The Labour Party had about a million members in addition to the notional membership of those who belonged to its affiliated trade unions. Between them, they probably represented a rough cross-section of the voting public. Today, in spite of the recent rise in Labour Party membership, the Royal Society for the Protection of Birds has a larger membership than all three national political parties combined. 

The Hansard Society’s latest annual audit of political engagement records a marked rise in the number of people who say that they don’t want to have any involvement in either national or local decision making. All of this has widened the gap between professional politicians and the public. It has meant that membership of political parties has been abandoned to small numbers of activists who are increasingly unrepresentative of those who vote for them. The effect has been to obstruct the ability of parties to function as instruments of compromise and to limit the range of options on offer to the electorate. This is a dangerous position to be in. The current disengagement of so many voters is, in the long run, likely to lead to a far more partisan and authoritarian style of political leadership. 

There are some truths which are uncomfortable to admit. One of them is that an important object of modern democratic constitutions is to treat the people as a source of legitimacy while placing barriers between them and the direct operation of the levers of power. They do this in order to contain the fissiparous tendencies of democracy, to counter the inherent tendency of democracy, to destroy itself when majorities become a source of instability and oppression. 

One of these barriers, as I have argued, is the concept of representation. The other is law, with its formidable bias in favour of individual rights and traditional social expectations and a core of professional judges to administer it who are not accountable to the electorate for their decisions. These two barriers are not mutually inconsistent. You can have both. To a greater or lesser extent, most countries do. But we need to understand the limits of what law can achieve in controlling majorities and the price to be paid if it tries too hard. 

Abstract reasoning

The attractions of law are obvious. Judges are intelligent, reflective and articulate people. They are intellectually honest, by and large. They are used to thinking seriously about problems which have no easy answer and contrary to familiar clichés, they know a great deal about the world. The whole judicial process is animated by a combination of abstract reasoning, social observation and ethical value judgment that seems, to many people, to introduce a higher morality into public decision-making. So as politics has lost its prestige, judges have been ready to fill the gap. The catchphrase that justifies this is the rule of law. 

Now, judges have always made law. In order to decide disputes between litigants, they have to fill gaps, supplying answers which are not to be found in existing legal sources. They have to be prepared to change existing judge-made rules if they are mistaken, redundant or outdated. The common law, which has grown up organically through the decisions of judges, remains a major source of our law. Judges have traditionally done this within an existing framework of legal principle and without trespassing on the functions of parliament and the executive. 

In the last three decades, however, there has been a noticeable change of judicial mood. The Courts have developed a broader concept of the rule of law which greatly enlarges their own constitutional role. They have claimed a wider supervisory authority over other organs of the State. They have inched their way towards a notion of fundamental law overriding the ordinary processes of political decision-making, and these things have inevitably carried them into the realms of legislative and ministerial policy. To adopt the famous dictum of the German military theorist Clausewitz about war, law is now the continuation of politics by other means. 

The Courts operate on a principle, not always acknowledged but usually present, which lawyers call the principle of legality. It is probably better described as a principle of legitimacy. Some things are regarded as inherently illegitimate. For example, retrospective legislation, oppression of individuals, obstructing access to a Court, acts contrary to international law, and so on. Now, that doesn’t mean that parliament can’t do them but those who propose these things must squarely declare what they are doing and take the political heat, otherwise there is too great a risk that the unacceptable implications of some loosely worded proposal will pass unnoticed as a Bill goes through parliament. 

The principle of legitimacy is a very valuable technique for ascertaining what parliament really intended, but it puts great power into the hands of judges. Judges decide what are the norms by which to identify particular actions as illegitimate. Judges decide what language is clear enough. These are elastic concepts. There are usually no clear legal principles to shape them. The answer depends on a subjective judgment in which a judge’s personal opinion is always influential and often decisive. Yet the assertion by judges of a power to give legal effect to their own opinions and values, what is that if not a claim to political power? 

Let me illustrate this with two recent decisions of the Supreme Court. Both of them concerned a matter on which the Courts have always been sensitive, namely attempts to curb their own authority. As it happens, I didn’t sit on either of them. The first is about Court fees. Employment tribunals were created by Act of Parliament to provide a cheap and informal way in which employees could enforce their rights, the rights conferred upon them by statute. Until 2013, access to them was free but in that year the government introduced steep fees which people on low or middling incomes could not afford, at any rate without large sacrifices in other directions. 

The government had a general statutory power to charge fees but in 2017 the Supreme Court held that the language of the Act was not clear enough to authorise fees so large that many employees would be unable to enforce their rights in Court. This decision has been criticised but I think it was perfectly orthodox. MPs looking at the words of the Bill as it went through parliament would not have suspected that the power to charge fees would be used to stifle people’s employment rights. 

Let’s now move to the opposite end of the spectrum. The Freedom of Information Act entitles people to see certain categories of documents held by public bodies, unless there is an overriding interest in there being withheld. The Act also conferred on the Court a power to order disclosure but in addition to those, it gave ministers a veto if they felt that they could justify that in parliament. In other words, it empowered them to impose a political rather than a legal solution. 

The Tribunal decided that letters written to ministers by the Prince of Wales should be disclosed to a journalist on The Guardian. Thereupon the Attorney General issued a certificate under the Act overriding that decision on the ground that disclosure was not in the public interest. The Supreme Court, by a majority of five to two, quashed this decision. The majority’s reason, however dressed up, was that they didn’t approve of the power that parliament had, on the face of it, conferred on ministers. Three of the judges thought that it was such a bad idea that parliament could not possibly have meant what it plainly said. Two others accepted that parliament must have meant it but thought that the Attorney General had no right to disagree with the tribunal. 

For my part, I think that there is no reason why a statute should not say that on an issue like this a minister answerable to parliament is a more appropriate judge of the public interest than a Court. As one of the two dissenting judges pointed out, the rule of law is not the same as the rule that the Courts must always prevail, whatever the statute says. No other modern case so clearly reveals the judge’s expansive view of the rule of law. Whether the Prince of Wales’s letters should be disclosed is not itself a very important issue but the same technique has been applied more discretely to sensitive issues of social policy about which the public feels much more strongly. 

An example, say for the past half century, include education, subsidised fares on public transport, social security benefits, the use of overseas development funds, statutory defence system murder, the establishment of public inquiries and many, many others. On immigration and penal policy, the Courts have for many years applied values of their own which are at odds with the harsher policies adopted with strong public support by parliament and successive governments. 

Now, most people’s reaction to decisions like these depends on whether they agree with the result, but we ought to care about how decisions are made and not just about the outcome. We ought to ask whether litigation is the right way to resolve differences of opinion among citizens about what are really questions of policy. Many people applaud decisions of the Courts which wrong-foot public authorities. Sometimes they’re right to applaud but there is a price to be paid for resolving debatable policy issues in that way. 

It is the proper function of the Courts to stop governments exceeding or abusing their legal powers. But allowing judges to circumvent parliamentary legislation or review the merits of policy decisions for which ministers are answerable to parliament, raises quite different issues. It confers vast discretionary powers on a body of people who are not constitutionally accountable to anyone for what they do. It also undermines the single biggest advantage of the political process, which is to accommodate the divergent interests and opinions of citizens. 

It is true, politics do not always perform that function very well but judges will never be able to perform it. Litigation can rarely mediate differences. It’s a zero sum game. The winner carries off the prize, the loser pays. Litigation is not a consultative or participatory process, it is an appeal to law. Law is rational. Law is coherent. Law is analytically consistent and rigorous. But in public affairs these are not always virtues. Opacity, inconsistency and fudge maybe intellectually impure, which is why lawyers don’t like them, but they are often inseparable from the kind of compromises that we have to make as a society if we are going to live together in peace. ( 

— Lord Sumption is a former justice of the UK’s Supreme Court. His presentations in the BBC series, ‘The Reith Lectures’ are available on the BBC World Service website. This transcription is the second in a continuing series. In the next lecture, he reflects on ‘Human rights and wrongs’.

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