Lord Sumption, the former Supreme Court Justice and historian, devoted his 2019 Reith Lectures on Radio 4 to making the case that the law – particularly human rights law – has begun to usurp the place of democratic politics, to the disadvantage of Britain’s constitutional equilibrium.
Only a few years ago, the protection of human rights seemed to be a relatively uncontentious political objective, a consensual expression of the liberal values that were presumed to be the lodestars of any decent political order. More recently, a steady drum beat of scepticism about human rights has become a progressively louder presence in British public life.
This scepticism has now been given a more analytical presentation by Sumption. According to him, decisions that were once the province of parliament, or which existed outside of legal regulation altogether, have increasingly been subsumed into ‘law’s expanding empire.’ This is a realm controlled by judges, whose imperium possesses none of the democratic accountability that constrains elected politicians.
Sumption’s Reith Lectures were panoramic in their range, sweeping across swathes of history, political theory, and comparative legal analysis, and peppered with sharp reflections on recent controversial legal cases and political issues. Yet for a distinguished historian, Sumption was curiously unreflective about why the law, and the related discourse of human rights, have risen to greater prominence in recent decades. Insofar as Sumption had an answer to this question, it was a long-range explanation, delving back into the deep history of the evolution of British democracy.
As the British state became more democratic across the nineteenth and twentieth centuries, Sumption noted, popular expectations of the state have become exponentially greater and thus demands for greater legal regulation of the economy and society have become inescapable. In addition, though, Sumption argued that changing social attitudes are a crucial part of this story, with the turn to the law facilitated by an increase in what he termed ‘moral absolutism’ and a reduced tolerance for risk (although he did not specify precisely when these shifts occurred).
By ‘moral absolutism’, Sumption meant that today there is greater pressure for conformity in public attitudes and opinion than ever before, as expressed through social media and the press, but also in increased demands for the law to intervene in areas that were once regarded as the province of individual choice.
In Sumption’s view, the law has started to impinge on matters over which there might be reasonable moral disagreement and which do not qualify as harmful to others (to use the ‘harm principle’ famously set out by John Stuart Mill in the nineteenth century). In addition, Sumption argued that levels of risk that would have been tolerated by earlier generations are no longer acceptable to popular opinion – instead, the freedom to act has in various ways been constrained in the interests of protecting the public from harm.
In his lecture, Sumption elaborated these points in carefully balanced language, implying that they are to some extent inevitable features of modern life rather than developments that should be straightforwardly deplored. But there also seemed little doubt that he believes that Britain has got the balance wrong on these issues, at least insofar as they are now often pursued in the courts rather than amid the hurly-burly of parliamentary politics.
How convincing is this historical account that underpins Sumption’s argument? While Sumption is surely correct to say that democracy has in a broad sense expanded popular expectations of the state, his other points are further from the mark. It is above all rather eccentric to see today’s Britain as characterised by an unparalleled ‘moral absolutism’ compared to earlier periods – before, roughly speaking, the 1960s – in which male homosexuality was criminalised; divorce was difficult to access; gender roles were determined by conservative social customs; a deferential media connived with the political elite in managing popular opinion; and an austere Protestant Christianity dominated mainstream ethical and political discourse.
In contrast, social historians such as Jon Lawrence and Florence Sutcliffe-Braithwaite have argued that a striking feature of British life since the 1960s has been the rise of a widespread vernacular individualism, which emphasises personal freedom and authenticity over obedience to inherited customs and traditions.
In a sense, the decades ever since have seen John Stuart Mill’s case for autonomous self-development make considerable popular progress as a matter of lived experience, thanks to rising material affluence, the welfare state, and a wider cultural revolt against social hierarchy. Interestingly, the increase in the political salience of human rights took place around the same time, not as a straightforward product of the post-war reaction to the Holocaust (as has conventionally been argued), but rather – as Samuel Moyn has maintained – as an alternative radical reforming vision that gained political purchase only after the 1970s, as the appeal of socialism waned.[i]
The connections between these two shifts were only indirect, but there is an affinity between a society in which individual self-expression has become a widely accepted social goal and a new language of rights that highlights the protected status of such liberties.
A parallel objection can be made to Sumption’s other historical contention, that the gradual encroachment of the law on everyday life reflects a reduced appetite for risk and a more paternalistic culture. Again, this is a claim that appears curiously out of step with recent British history – at least insofar as Sumption implies that this is a process that has gone too far.
Until very recently, the British state displayed a disgraceful lack of care for ordinary citizens who came into conflict with its interests, as a succession of terrible injustices (and countless everyday examples) have vividly illustrated. The policing of the Hillsborough disaster and the miners’ strike are two examples that have received attention recently, but there are many others – in the NHS, for example.
By the 1990s it was evident that the secretiveness and lack of accountability hard-wired into the British state were in need of significant reform. Many of the measures that have advanced the legal scrutiny of power in Britain emerged in this context – the Human Rights Act, for one, but also the Freedom of Information Act and the creation of the Supreme Court – alongside other developments that have also improved the scrutinising role of parliament, such as the enhancement of the select committee system. Matters are far from perfect today, but we have at least now evolved a legal and parliamentary system that takes individual rights against public decision-makers far more seriously than it ever has before.
The irony is that, far from the paternalism detected by Lord Sumption, the rise of a more activist legal culture is precisely a reaction to the previously highly paternalist model of authority in Britain, which presumed to know what was best for the populace to such an extent that the interests of individual citizens were given far too little weight in the decision-making of all manner of public bodies. In short, these reforms have in fact made Britain more democratic, not less.
Lord Sumption’s Reith Lectures were concluded by rejecting proposals to introduce a written constitution for Britain. His reasoning was that a legal document of this sort was alien to the British tradition and its absence had served the country well in the past, giving the British political system greater flexibility than less fleet of foot states who find themselves in hoc to a codified constitution (in practice, of course, this latter category is a capacious one that covers almost every other state in the world). In a resonant phrase, Sumption argued that a written constitution for Britain ‘would have no basis in our historical experience, and experience counts for a great deal in human affairs … Ultimately, the habits, traditions and attitudes of human communities are more powerful than law.’
Sumption is right to say that historical experience matters, but Britain’s history over the last fifty years is in fact marked by an important trend away from the implicit and hierarchical social codes that previously structured Britain’s governance towards a more explicit and egalitarian language of individual rights. A written constitution – one grounded on such liberal democratic principles – would therefore much better reflect ‘our historical experience’ than one that still stubbornly reflects who ‘we’ were a long time ago.
This article appears in the upcoming edition of the Political Quarterly journal.