affiliated to the International Association of Constitutional Law
In his fifth and final Reith lecture, broadcast yesterday morning and entitled “Shifting the Foundations”, Jonathan Sumption brings to a conclusion his reflections on “the decline of politics and the rise of law to fill the void”. The lecture encourages us to resist calls for a written constitution, calls which, Sumption says, “mark the extreme point” of “our persistent habit of looking for legal solutions to what are really political problems”. He makes the case instead for the merits of our historic constitution and for efforts to shore up the political foundations of our democracy.
Sumption notes that a written constitution would almost certainly expand the constitutional role of judges and that the point of every scheme for such has been to cut down legislative power. He reiterates his scepticism “about claims that our system of government can be improved by injecting a larger legal element into it”. I share the scepticism. Of course, not all legal changes are made equal. The devolutionary settlements, which the lecture goes on to praise, involve change to constitutional law, and expand the jurisdiction of the courts in important ways, but do not transform the constitutional balance between political and legal authorities. The key question, as Sumption implies, is whether legal changes disable or dilute legislative power and parliamentary democracy.
The British constitution is centred on “the sovereignty of Parliament”, which Sumption rightly says “is the foundation of our democracy”. Parliament is limited not by law but by conventions, which “derive their force from shared political sentiment”. The government takes a central place within Parliament, which “is not just a legislative or deliberative body but an instrument of government”. This scheme is very different to the constitutions of other states (New Zealand aside), but Sumption cautions the need to understand how it arose before looking for alternatives. The distinctiveness of our constitution, he says, is no vice as it is a result of our unique history. “For more than three centuries”, Britain “has been fortunate, or perhaps unfortunate, in having experienced none of the catastrophes that have called for new beginnings elsewhere.” And in practice, the political constitution has proved its worth, enabling “the British state to adapt to major changes in our national life which would have overwhelmed much more formal arrangements”. He takes devolution as his main example, contrasting the UK’s capacity to accommodate Scottish and Welsh nationalism with Spain’s difficulty with Catalan nationalism, a difficulty compounded by the rigidity of the Spanish constitution.
I agree that our constitution has proved its worth over time, enabling major political changes while maintaining continuity with our political and legal history. The openness of the Westminster constitution to radical political change is a virtue. This radical capacity is subject to the self-tempering discipline that today’s majority may be tomorrow’s minority: long-term, stable change requires widespread public support. Responsible government and parliamentary democracy are oriented towards the common good and make self-government possible. They form part of a shared constitutional tradition and their political foundation is the joint commitment of the people of the United Kingdom to be governed by way of these arrangements, which unite them in common action. The devolutionary settlements were introduced and have been extended in this way. The risk of the experiment, which Sumption perhaps should have noted (but see his outstanding lecture “The Disunited Kingdom”), is that devolution may end up eroding the common feeling that supports the constitution. That is, the United Kingdom may cease to be a single (if complex) political community.
Sumption’s intention is to persuade his audience “that we ought to be looking at more fundamental causes of the current diseases of our body politic than the peculiarities of our constitution.” Recalling his second lecture, Sumption argues that the real problem is public disengagement with politics, a phenomenon evident in declining party membership, falling electoral turnout, and widely shared contempt for politicians. The phenomenon is seen across the West and its causes, Sumption argues, “are inherent in the democratic process itself”. Echoing his first lecture, he notes that democracy generates expectations that are inevitably disappointed, undermining public confidence, a dynamic which is especially pronounced in hard times, when growth falters and inequality rises. Relatedly, “the perceived remoteness of politicians” is a problem, yet representative politics inevitably produces a political class, distinguished by ambition, zeal and knowledge. Modern ideas of representation, Sumption says, require representatives not just to act for the people but to be like them, which is always unlikely. And in the UK, the rejection of political elites has had a particularly significant consequence, which is to surrender political parties to extremists, making parties less capable of, or even interested in, compromise and responsible government.
Across the West, Sumption argues, political community is under strain and democracy has become ever less stable. “The United States has for the moment ceased to be a political community, because neither side of the major political divide respects the legitimacy of policy positions that they disagree with.” The same, he says, is true in Britain in relation to Brexit. This is an overstatement, it seems to me, but it is true that democracy requires us to recognise one another as fellow citizens, to jointly seek our common good, and to accept the legitimacy of decisions we make together. Representative politics requires political elites, but representation badly misfires not only when the masses have contempt for elites but also when elites disparage or disengage from the masses. In a powerful lecture earlier this year, Richard Tuck noted that the sociological foundations for democracy in the past included industrialisation, where national prosperity required mass action, and the age of citizen armies, where national defence required shared military service. Democracy is in trouble when elites and masses no longer understand themselves to share a common good, including when elites begin to identify more closely with a transnational or supranational community than with their own.
Having reviewed “our current problems of political legitimacy”, Sumption concludes that adopting a written constitution would “not make any difference”. For all it would do would be to shift “power from an elective and removable aristocracy of knowledge, to a corps of judges which is just as remote, less representative, and neither elective nor removable.” This is an understatement. Parliamentarians may be remote, but they are nothing like as remote as senior judges. They are exposed to public criticism and opinion in a way from which judges are, rightly, largely insulated. Investing judges with responsibility for political choice would sharply worsen the problem of political legitimacy. It would also compromise the judicial capacity to contribute to the rule of law and would institute a mode of government that is not well-placed to secure the common good.
Rather than toying with a written constitution, Sumption encourages his audience to consider electoral reform, which would open the space for minor parties and force the main parties to broaden their appeal beyond a narrow base. The site for compromise would thus be between parties rather than within them, which might mean weaker, less stable government. But, Sumption reasons, this would “be a price worth paying if it boosted public engagement with politics” and enabled compromise to be forged. Electoral reform is certainly worth considering – New Zealand’s abandonment of first past the post in the 1990s seems broadly successful, even if not without its cost in terms of transparency and responsibility. And one might consider more particular reform of political parties, limiting the risk, on display in recent years, that the membership outside Parliament will foist a leader on the parliamentary caucus who then lacks the confidence of his or her colleagues.
The lecture concludes by prophesying that democracy will not end with a bang, but will simply fade away, with our “institutions imperceptibly drained of everything that once made them democratic.” It is a chilling warning and a fitting end to the series but it does invite some wider thoughts about these Reith lectures. Sumption often assumes that law has risen to fill a void left by the decline of politics. But the relationship between the two is dynamic, as these lectures in part confirm. The rise of law, itself fuelled by the hostility of many lawyers towards parliamentary democracy, serves to oust politics and partly causes its decline. The adoption of supra-national legal restraints, enforceable by domestic and European judges, is the extreme case and clearly weakens national democracy (see further Peter Mair and Helen Thompson). The analogous trend in domestic courts is also important, even if political authorities strictly have a greater capacity to resist judicial usurpation at home.
The Reith lectures argue that turning to the law will not solve our problems of political legitimacy. This is a point rightly made but it risks understating, as I say, the contribution that “law’s expanding empire” has made to those problems. It may also at times take for granted a shared commitment to democratic legitimacy, whereas in fact it is the thinness of elite commitment to political legitimacy that is a main reason to fear for democracy’s future. The calls for a written constitution, or for supra-national law and adjudication, or for domestic litigation to discipline our political authorities – these may not be misguided attempts to shore up democracy’s foundations, but rather attempts to tie an unruly people down. Sumption is, as I have said, no radical democrat; his call for greater public engagement in politics is limited by his choice to frame representative politics as a restraint on popular majorities. But he rightly sees, I suggest, that a political strategy of demobilising the people, of relying on law to restrain politics, is not only unjust but also unstable and hence imprudent.
Richard Ekins is Associate Professor, University of Oxford, Head of Policy Exchange’s Judicial Power Project, and editor (with N. W. Barber and P. Yowell) of Lord Sumption and the Limits of the Law (Hart Publishing, Oxford, 2016).
(Suggested citations: R. Ekins, ‘Reflections on Democracy’s Foundations’, U.K. Const. Blog (19th Jun. 2019) (available at https://ukconstitutionallaw.org/))