Law in a Time of Crisis by Jonathan Sumption - review by Dominic Grieve

Dominic Grieve

The Case for the Citizen

Law in a Time of Crisis

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Although we share a profession, my first encounter with Jonathan Sumption and his work came through a mutual love of late-medieval history, nurtured at different times in the same Oxford college. Noting my interest, my newly wed wife bought me the first volume of his work on the Hundred Years’ War to read on honeymoon. Both the honeymoon and the book were a delight, and I have remained happily married and a fan of this masterpiece of narrative history ever since. We recently celebrated our thirtieth wedding anniversary but she is still waiting for the last volume to come out.

That length of time points to unusual aspects of Sumption’s career, which are reflected in this book of essays, based on lectures he has given over the past decade. Unlike his Reith Lectures in 2019, which focused on the risks arising from excessive judicial activism, Law in a Time of Crisis offers a wide-ranging set of discourses that owe as much to his being a historian as a lawyer. Indeed, he makes this point in the first essay, ‘The Historian as Judge’, where he admits that financial considerations made him turn from a career as an academic historian to practise at the Bar, while also stating that the study of history provides a better training for the would-be judge than the study of law (the past, he notes, is the begetter of much of the common law). What is unusual is that such a background has led Sumption to become not just a very successful barrister but also a justice of the Supreme Court – without any prior full-time judicial experience.

Retired judges have usually had long careers on the bench, during which they have acquired an ingrained reticence when it comes to speaking on controversial topics. Not so Sumption. One detects in these essays a sense of release from the constraints of judicial office and a desire to engage with pressing political and moral questions. As he has recently found out, such engagement can attract controversy. The subtlety of his arguments and the academic rigour that underpins them can leave them open to misinterpretation.

The three essays forming the book’s middle section, ‘Law: Conceptions and Misconceptions’, are the most traditional, and it is no surprise to see that they originated as talks given when Sumption was still in the Supreme Court. That said, while the first, on judicial diversity, is a restrained argument that ‘appointment on merit’ implies of necessity that greater judicial diversity will only be achieved slowly, the third – on judgements of the House of Lords altering, in Sumption’s view without good reason, the way contractual terms are interpreted – is distinctly sharp. I was left wondering what his fellow Supreme Court justices must have made of it at the time it was delivered, particularly its attack on the judicial reasoning of Lord Diplock and Lord Hoffmann, the latter of whom, though by then retired, was (and remains) very much alive.

Most of the other essays are even less restrained. In ‘On Apologising for History’, he confronts the growing trend of apologising for historical wrongs perpetrated by individuals long dead. He says that ‘what is morally objectionable’ about the practice ‘is that it depends upon a concept of collective and inherited guilt which is indefensible’. It is ‘a rebuke to the past for not being more like the present. It marginalises historical events by treating them as monstrous aberrations from a path of truth chosen by our own generation … It obstructs our understanding of the past.’

For similar reasons, he criticises those seeking the removal of statues of persons linked to the slave trade or colonialism: ‘to present what was bad about our past as if it was the whole is to falsify history.’ The movement to get rid of statues of, say, Edward Colston and rename institutions commemorating the likes of David Hume ‘is based on the idea that nothing else about them matters. So it casts aside statues that were erected to honour their philanthropy or their philosophy, not their slave trading. This is obsessive and fanatical.’

Readers will doubtless have mixed responses to this. The argument shows impeccable logic and needs to be made. But elsewhere in this essay, he argues that while the injury done to victims of the slave trade is obvious, it is not obvious what injury has been done to the dispersed descendants of slaves alive today. ‘In what sense,’ he asks, ‘other than a purely genealogical one, do they represent the victims of the original wrong?’ That, it seems to me, misses the point that the legacy of historical wrongs runs deep through the human psyche, as we can see in numerous examples, from the case of Ireland to that of Armenia. It may be illogical, but it is a reality that human societies cannot remove through logic and have to address through forms of reconciliation.

Two very enjoyable essays consider the handling of state secrets through the ages and the true significance and effects of Magna Carta. That on the former reveals, among other things, that when the Public Record Office was first opened to readers in 1856, no documents dating from after 1628 could be made available, despite the fact that those up to 1654 had already been published in the late 17th century – an early example of the obsession with secrecy on past matters that has characterised British governments. As for Magna Carta, Sumption’s essay is an essential corrective to those who get misty-eyed about its pertinence in modern times. But I can’t completely accept his argument that it was forgotten by the English in the 15th and 16th centuries, to then be entirely reinvented by Sir Edward Coke in the constitutional battles of the 17th. How else should the mid-Tudor-period oath I had to take on becoming attorney general be explained? This required me, inter alia, to ‘speed such matters as any person shall have to do in law against the Queen as I may lawfully do, without tracting or tarrying the Party of his lawful process in that that to me belongeth’, which reflects exactly what is promised in Clause 40 of Magna Carta.

At the heart of this book is a four-essay section entitled ‘The Constitution: Towards an Uncertain Future’. This provides a well-reasoned analysis of the current state of our politics and reveals Sumption’s anxiety at the ongoing process of constitutional change, characterised by the decline of parliamentary government and the rise of executive power and government by decree. This anxiety is most clearly on display in the final essay, on the coronavirus crisis. There, he turns to the astonishing powers given to the government and their misinterpretation and abuse by the police and authorities – with apparent widespread public approval, owing to a generalised fear of contagion. Sumption’s conclusions may appear to some exaggerated, but I found his examination of the dangers inherent in the tame acceptance of restrictions on freedom, rubber-stamped by Parliament and arbitrarily enforced, compelling.

Sumption’s anxieties are also illustrated in two other essays, which look at how our constitution performed during the Brexit process. He says, ‘the Brexit crisis was the combined result of three remarkable developments. The first was the attempt to resolve a highly controversial question by introducing an element of direct democracy into a parliamentary system. The second was the advent of minority government. And the third was the collapse of a shared political culture.’ From his subsequent comments, it is clear that he thinks the third of these in particular should set alarm bells ringing. He sees both Theresa May’s and Boris Johnson’s attempts to displace Parliament, claim the referendum result as an alternative source of constitutional legitimacy and delegitimise opposition as inseparable from Parliament’s reduction to a rubber-stamping body since the 2019 election. He worries that we are turning to a form of popular democracy where the end justifies the means and there are no conventions to fetter government. I was pleased to note that, despite describing Speaker Bercow as ‘rude, loud and excessively talkative’, he praises him for interpreting the standing orders of the House of Commons to reflect the absence of a government majority between 2017 and 2019. He also goes to the heart of the constitutional issues raised by the 2019 prorogation controversy. If the Supreme Court had not ruled that the Johnson government’s prorogation of Parliament was unlawful, the effect would have been ‘to transform a public power into a personal privilege of the prime minister’.

Sumption thinks it will be hard to restore the status quo ante. He says, I believe correctly, that

the only thing that ever has or ever will unite us is a common loyalty to a way of conducting our affairs that we can respect even if we disagree on the outcome … it means a process that recognises the legitimacy of opposition. It means a government which does not believe that the ends justify any means that are calculated to achieve them. These are not just optional extras or rules of courtesy. They are fundamental to the survival of the democratic state … It is a shared political culture. Like most cultural phenomena, a shared political culture is a spontaneous growth. It is difficult to create. But it is very easy to destroy.

Unusual as it is to hear all this from a former judge, these essays will I hope be read by those with direct responsibility for our country’s future. I also hope that we may in due course get some more, as evidence-based commentators are rather few and far between these days. I am looking forward to reading them – after that last volume on the Hundred Years’ War.

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