TRIALS OF THE STATE

LAW AND THE DECLINE OF POLITICS

‘Lord Sumption, who retired as a Supreme Court judge last year, [was] asked to give the 2019 Reith lectures, which are now published as Trials of

the State,’ explained Thomas Grant in the Times.

‘Sumption’s thesis may be summarised as: judges should apply the law as it is, rather than decide what it should be, because if they do the latter they are stepping outside their constitutional role. However, there has in recent decades been an unwelcome tendency towards judicial activism... Judges have assumed a quasi-legislative role and are making decisions that are the proper business of political debate.

‘But the notion judges should apply, not make, law is at odds with the fact that one of Britain’s greatest gifts to the world – the common law – is a purely judge-made construct.’

Stephen Sedley, a former judge of the Court of Appeal, wrote in the

London Review of Books: ‘The irony is that while [Sumption] was writing... such parliamentary democracy as we had fell apart. The government repeatedly suffered defeat without resigning. A prime minister who had at least fought and almost won an election was replaced by a political mountebank picked by a portion of the membership of a single party, a process about which Sumption does not conceal his dismay.’

And Sedley felt: ‘His characterisation of the UK constitution as “essentially a political and not a legal constitution” is an endeavour to draw a boundary where there is none.’