I have just been re-reading (for some teaching I’m doing this week) the recent contributions of Jonathan Sumption and Stephen Sedley to the debate about the proper limit of the courts’ powers in a democracy (and in the UK in particular). Whether you are a prospective Law student or someone who is currently studying Public Law, Constitutional Law, or Administrative Law, Sumption and Sedley’s sharply differing papers are well worth looking at.
The first contribution is by Lord Sumption – written after his appointment to the Supreme Court was announced, but before he had taken up his appointment. (Sumption was appointed to the Supreme Court, somewhat controversially, without prior substantial experience as a senior judge, having been a prominent and widely-respected barrister.) Sumption argues that English judges have overstepped the mark: that they are too willing to rule against the Government (meaning, interchangeably it seems, Parliament and the Executive); that they conjure “rights” from thin air in order to find Government policy wanting; and that this reduces (at least in some situations) to little more than the advancement of judges’ own opinions under the guise of legal adjudication.
The second contribution is by Sir Stephen Sedley, who recently retired after several years as a distinguished High Court and Court of Appeal judge. Sedley puts forward a blistering critique of Sumption’s position, accusing Sumption of basing his argument on an unrepresentative (and sometimes poorly presented) set of cases, and of simply ignoring the great lengths to which courts go when attempting to work out whether it is acceptable for judges to adjudicate on a particular matter – and, if so, how close their scrutiny can properly be.
The disagreement between Sumption and Sedley reflects a much broader debate about the merits of so-called “legal constitutionalism” and “political constitutionalism”. On the one hand, there are those who maintain that the political branches of the constitution – that is, Parliament and the Executive – should be regulated principally by the political process itself. On this view, political scrutiny – including, ultimately, the electoral process – should be the principal forum for examining the wisdom of policy choices; courts should stick to making sure that the letter of the law has been adhered to and due process observed. On the other hand, legal constitutionalists contend that law should play a greater role in seeing that Parliament and the Executive respect basic rights and values – not least because those rights and values as they apply to some individuals and groups (eg marginalised minorities) may not be readily respected by a political process that inevitably aims to please the majority of prospective voters.
These issues are complex; the roots of the disagreement between Sumption and Sedley are deep, and their implications far-reaching. But their arguments are put in relatively accessible terms, and are well worth looking at. If you want to read them, you can find them via these links:
- Sumption, “Judicial and Political Decision-Making: The Uncertain Boundary” (FA Mann Lecture, November 2011)
- Sedley, “Judicial Politics” (2012) 34 London Review of Books 15