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Book Review: 'Trials of the State' by Lord Sumption

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About The Author

Naz Khan (Guest Contributor)

Naz Khan is a LL.M. candidate at Durham University, his main interests lie in civil issues and corporate law. It is his intention upon completion to pursue a career at the bar. Outside the law, he enjoys travelling and charitable work.

No one can successfully accuse Jonathan Sumption (The Right Honourable Lord Sumption OBE) of lying low and avoiding the public eye following his UK Supreme Court career. The provocative, clever, and uniformly skilled legal scholar advances a clear argument in this well-written 2019 work: law, and its modern fixation on rights and due process, has now largely filled the space previously occupied by politics and political debate - for better or for worse.

Sumption’s career has been marked by many successes, both professional and personal. Sumption was a leading barrister, but he has received equal acclaim as a historian - his four part ‘100 Years War’ history is a compelling and eclectic scholarship that is entirely detached from the law. He remains one of the very few UK lawyers to have been appointed directly from the Bar to Justice of the Supreme Court. His judicial appointment was all the more notable given what he gave up: Sumption had an active and highly commercially successful career,  and was part of the Bar’s ‘million-pound club’ based on his rate and earnings. A barrister of his skill and eminence might have been content to continue on a seemingly fulfilling career path, but instead he went to the bench.

In ‘Trials of the State’, Sumption charts a path that plays upon the irony prompted by his title. He discusses the ‘decline’ of politics through legal disputes that themselves involve important public law – and political - questions, the ‘trials’ in which the constantly evolving UK constitutional dynamic has been profoundly influenced. The 2017 Miller Brexit challenge, and its ultimate determination that Parliament must approve any Brexit deal, is one of a number of proceedings on which Sumption offers insightful commentary. ‘Insightful’ is the operative word, as Sumption does not demand that his reader share his view and remains impartial throughout the discussi

It is Sumption’s use of the trial, as a description for present discomfiture with the political process in the UK, that strikes an immediate chord with his reader. Sumption suggests that the Miller decision is an entirely uncontroversial, doctrinaire interpretation of English judicial review procedures that have been accepted for at least 250 years. While acknowledging that Miller was a highly controversial feature of the political debate around Brexit, the outcome must be understood as the product of an ‘orthodox application of the long-standing constitutional rule that only Parliament can change the law.' This assertion by Sumption is hard to take at face-value – even among the many tumultuous events that have defined the Brexit process, the outcome of Miller was hardly viewed in dispassionate, legalistic terms by the general public, much as a literal Trials of the State reading suggests otherwise.

An observer reasonably sophisticated in English constitutional and public law might take issue with Sumption on this point. Many eminent legal experts have cast serious doubt on Sumption’s discussion of Miller, notably former Court of Appeal jurist Stephen Sedley, who doubts Sumption’s characterisation of the case but not the judgment itself. However, the disagreement of other experts is not determinative of the overall quality of the work, its readability, or its importance. Sumption is a highly skilled writer, whose command of his subject – even where the reader might strongly disagree with his opinions – inspires profound respect for his arguments.

Two points raised by Sumption are particularly intriguing in the currently inescapable context of Brexit. The first is his assertion that UK politics is no longer a democratic exercise at the grass roots level. Sumption argues that as national political parties - Conservative, Labour, and Liberal Democrats alike - have experienced steadily declining membership, each of these parties have been ‘colonised by relatively small numbers of hard-edged zealots and entryists with … no interest at all in accommodating anyone else’, Sumption’s work suggests this a hindrance to the democratic process, as political ideals and policies are shaped by a select few individuals instead of a broad church. Sumption’s chosen solution is voting reform. An avid supporter of Proportional Representation, he suggests moving from the current system of first-past-the-post would reinvigorate people’s engagement with politics.

However, Sumption’s point as made in Trials equally supports the observation that in a social media driven world, there is no need to physically recruit people to join a political movement, and then induce them to donate their money, time, and ideas. Any movement with enough Facebook ‘likes’ will acquire at least some mainstream credibility. Sumption does not employ this phrasing, but his implications are clear in this respect. His argument that law has supplanted politics in many ways is connected to the widely held view that, through digital media, the ability to exploit the law to achieve political objectives has never been greate

The second point advanced by Sumption is far more polarising. He says in Trials that:

‘the only effective constraints on the abuse of democratic power are political’

If this assertion is accepted at face value, a former UK Supreme Court justice is arguably undermining the value of the entire UK administrative and public law process, which exists to ensure that private citizens have accessible remedies to prevent abuses of democratic power. Judicial review has no other purpose than this. If one takes Sumption’s position here to its eventual conclusion, then judicial review is meaningless, its place taken by political lobbying and collective speech. This proposition would call into question Sumption’s main premise that law, and not politics, now prevails in most public discourses.

However, Sumption persuasively asserts that while political processes may be more effective than judicial review as a check on executive power - judicial review is only as effective as the executive is willing to abide by it - there is a very real interrelationship between more mundane political debates and law, particularly European Convention on Human Rights (ECHR) claims.

The case law on assisted suicide supports Sumption in this respect. Keep Calm Talk Law has previously explored the ways in which the Nicklinson and Conway cases, among others, have used legal claims through the ECHR to try and force a particular political outcome in the debate over assisted dying, focusing on obtaining ‘rights’ through the courts rather than lobbying MPs or pushing for legislation. That political positions such as ‘euthanasia should be legalised’ are now intertwined with the ECHR Article 2 protections – and the claims based upon them - cannot be denied, just as ‘Parliament should approve Brexit’ was a point litigated in court as much as in the Commons. These legal-political challenges are highly visible and controversial in a way that traditional judicial review and ‘long-standing constitutional rules’ rarely were.

So what does one make of ‘Trials of the State’? In a remarkable way, it is never necessary to wholly agree with Sumption’s core argument that law has supplanted politics, only to be open-minded to Sumption’s observations of the current political climate. There is much to admire in Sumption’s scholarship, and much to learn from a former senior UK jurist and leading barrister whose opinions are presented to, not thrust at his readers. Anyone reading 'Trials of the State’ gains insights into modern Britain, even if these are not always entirely welcome.

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Tagged: Brexit, Judicial Review, Public Law, Review, Supreme Court

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