Or a very full room? What a fantastic turnout. Thank you so much for coming, everybody.
At least the weather's been kind to us today as well as, I'm sure you know,
this is the first lecture in the Oxford Martin School series Shaping the future.
Just to remind everybody, both the lecture itself and the Q&A at the end will be filmed and a live webcast.
So just be aware of that for the Q&A session at the end of the talk.
Please wait for a microphone to be handed around to you so that we can all hear you at.
The front is quite a long room with not the most marvellous acoustics.
They all shoot up there to the gallery.
Um, it's my privilege and pleasure in Charles's stead as head of the School of Social Sciences to welcome our speaker today,
who will be well known to many of you. Whether you are recent fans as a result of the Reith lectures or long standing fans,
as many as many of you will be both from the historical, political and legal sides of his extraordinary body of work.
So, Lord Jonathan Sumption, thank you so much for joining us today.
Lord Sumption is an historian, author and was justice of the Supreme Court between 2012 and 2018, as well as being a barrister.
As many of you will know, he was in the early part of the 70s.
He graduated from modelling in history and then became took up a fellowship at Morton for the first half of the 1970s.
And I'm very pleased to hear from him this evening that he's now back with us with an association at all souls for many of you.
His work in history will be very well known.
The four volumes on the Hundred Years War, including divided houses,
which was the winner of the 2009 Wolfson History prise and also trials of the state law and the decline of politics,
which he's talking on at this year's Oxford Literary Festival.
So that's another opportunity to hear what he has to say.
He also, as I said, earlier gains in the 2019 Reith lectures, arguing that law was taking over the space once occupied by politics.
We may well be hearing some echoes of that, perhaps in tonight's talk.
So, Lord Sumption, thank you for being with us, and we look forward to your talk on British politics after Brexit.
Reflections on the last three years and the next 50.
Thank you, Lord Sumption. Good evening.
When Walter Badgett wrote the second edition of his classic account of the British Constitution in 1873,
he observed that it was likely to be out of date very quickly.
The British Constitution under Lord Palmerston, which he had described in the first edition,
was very different from that of Benjamin Disraeli only a decade later.
In the absence of a written code or comprehensive legal rules, the British Constitution is whatever happens, as budget put it.
The Constitution has continued an outward sameness, but in hidden in the change, he regarded this as an advantage.
It enables the Constitution to adapt to external shocks.
I'm inclined to agree with him about that, but it means as so often in Britain, that the label does not always match the contents of the bottle.
It also enables the British to achieve constitutional changes by accident without necessarily intending it.
Does this matter? It's far from clear that we would have a better constitution if we changed it on purpose.
We would certainly have a more rigid one.
I very much doubt whether a more formal constitution would have weathered the crisis of the past three years,
as well as the one that we've got during that period.
The Constitution has undergone significant changes, most of which can be traced to the decision to leave the European Union.
They include major changes in the role of political parties in the relations of
the governments with parliaments and in the constitutional role of the courts.
All of these have been controversial, but the controversy has been distorted by the European debate.
People have welcomed or deplored these changes depending on how they affect the
likelihood of leaving the EU and whether they happen to stand on that issue.
To my mind, this is rather absurd.
Ultimately, constitutional change has to be considered on its merits, irrespective of one's views about any particular issue.
What I want to talk about this evening is why the decision to leave the EU provoked the biggest constitutional crisis of recent history.
And I want to consider what the continuing effect of that crisis is likely to be on our public life.
Now that it's over. At any rate, at the domestic political level, the Brexit crisis was the result of three remarkable developments which coincided.
The first was the attempt to resolve a highly controversial question by introducing an element of direct democracy into a parliamentary system.
The second was the advent of a minority government, and the third was the collapse of a shared political culture which had previously existed.
Now these three things are, of course, related. The starting point for all of them was the referendum.
A referendum is a device for circumventing the parliamentary process.
The justification for doing that in 2016 was that there was a mismatch between parliamentary sentiment and public opinion.
Public opinion was divided on the European Union, but all parties represented in Parliament believed that we should remain in it.
So if you wanted to leave, there was no party that you could vote for, except for UKIP,
which had no employees and little prospect of getting any in due course.
This problem would probably have resolved itself sooner or later.
The transformation of the Conservative Party into an anti-EU party would, I think,
have occurred anyway as a result of the growth of anti-European sentiments in its electoral base.
But David Cameron's decision to try to lanced the boil in 2016 greatly accelerated the process with extremely disruptive consequences.
The great Victorian constitutional lawyer, a dicey whose works are still authoritative, was a great believer in referenda.
He thought that they were a superior alternative to party politics, which he regarded as a source of unnecessary strife and division.
He argued that referenda were a useful way of restraining the wild projects of politicians.
A referendum, he said, was an emphatic assertion of the principle that nation stands above party.
It would be hard to imagine a clearer refutation of dices view than the referendum of 2016.
The problem is that the argument doesn't work if this is the nation rather than the parties, which is divided.
There were, I think, two things wrong with the referendum of 2016.
The first is common to all referenda on issues about which there are strong feelings.
They create a sense of entitlement amongst the majority, which inhibits compromise and invites absolute solutions.
This is the mentality is summarised in the often repeated statement that the British people have voted to leave the EU.
It's implied at what many people said out loud that the 48 percent who voted to stay were
not for this purpose to be regarded as part of the British people and didn't really count.
Far from uniting the nation, as does see, had envisaged the referendum of 2016 sundered the four nations of the United Kingdom.
It divided us by class, by region, by economic status and by generation.
It split families, it alienated friends, it poisoned our politics.
It was, I think, the most significant cause of the demise of the shares political culture, which had hitherto enabled our constitution to work.
That has, in turn, encouraged a much more authoritarian style of government.
The second objection is specific to the referendum of 2016 in countries such as France,
Switzerland or Italy, whose constitutions provide for referendum.
It is necessary to formulate a precise legislative proposal whose approval by the electorate will be decisive.
That was the kind of referendum IOC had in mind. It was also the kind of referendum that Britain itself chose for the Scottish
devolution referendum of 1979 and for the alternative vote referendum of 2011.
The problem with the question asked in 2016 was that there were too many answers to it other than yes or no.
You might be in favour of leaving the EU in any circumstances. Whatever some people, you might be in favour of leaving it only on the footing.
Urged by the Leave campaign, namely that a satisfactory agreement could quite easily be reached about future relations with the EU.
If that was your view, there were any number of different agreements with the EU that you might regard as satisfactory.
Unfortunately, the nature of our future relations with the EU after leaving was not on the ballot paper.
It hardly could have been since it depended on the result of an uncertain future negotiation.
Yet that was the whole subject of dispute for the next three and a half years.
The referendum could only ever have been decisive if the answer was remain, as Mr Cameron confidently expected it to be.
If the answer was leave, then all the difficult questions would be left unanswered for Parliament to deal with as a result.
The referendum was not the end of the argument, but only the beginning.
Against that background, it is rather odd to say that Parliament had no business to be arguing, as it did about Brexit.
Yet that is what the government did say.
The House of Commons was repeatedly accused of obstructing the attempts to implement the results of the referendum.
This accusation reached the outer limits of hyperbole in September 2019,
when the attorney general of all people told the House of Commons that it has no moral right to sit in its manifesto for the subsequent election.
The Conservative Party declared that MPs had devoted themselves to thwarting the Democratic decision of the British people in the 2016 referendum.
Now this sort of thing has been repeated so often that we are, I think, in danger of believing it.
It is manifestly untrue.
The facts are that the House of Commons voted by a very large majority to serve the Article 50 notice on the European Commission.
It's accepted the principle of leaving the EU as a political necessity in the light of the results of the referendum.
But on the terms of our departure, it was as divided as the population that it represented, which was perhaps only proper.
The real birth of the government's complaint against Parliament was that a majority of MPs was
unwilling to allow them to leave the EU until they had made satisfactory alternative arrangements.
Now that undoubtedly weakens the government's negotiating hand in Brussels, but it was neither unreasonable nor undemocratic,
having sponsored a referendum which left parliament to sort out all the ambiguities and uncertainties of the results.
The government then lost the majority, which might have enabled that to be achieved.
There had been minority governments before before 2017, that is, but they were few and they were short lived.
In each case, the situation was managed by avoiding controversial legislation.
But that was hardly possible for Mrs May because Brexit,
one of the most controversial policies ever espoused by a British government, was top of the agenda.
The result of this was to test to the edge of destruction. Some of the basic principles on which our constitution works.
Britain is a parliamentary democracy in a more fundamental sense than is commonly realised.
The whole structure of our institutions depends on parliament being the ultimate decision maker.
This is because of the way in which uniquely amongst European countries, our democracy evolved without a break out of a monarchical constitution.
Walter Badgett described Britain as a disguised republic.
The Crown has extraordinarily wide powers whose actual exercise by the monarch would be quite inconsistent with a democratic constitution.
In theory, the monarch appoints and dismisses ministers in theory.
The Monarch summons, dissolves and prorogue parliament. In theory, the monarch consents to parliamentary legislation without which it is invalid.
In theory, the Monarch conducts the international relations of the United Kingdom that these
relics of absolute monarchy have been limited by convention since the 18th century.
So by convention, the prerogative powers of the Crown are actually exercised exclusively by her ministers,
who are answerable for that exercise to parliament and not to her.
By convention,
the monarch must appoint ministers who commands the confidence of the House of Commons and may not retain the services of ministers who have lost it.
By convention, the monarch does not veto parliamentary legislation.
We are only a democracy because of these conventions.
That combined effect is that the legitimacy of governmental action depends entirely
on parliamentary sentiment in overtly presidential constitutions like those,
for example, of the United States or France.
There are constitutional documents from which the executive can derive legitimacy for its acts independently of Legislature.
But there is nothing equivalent in Britain now.
That admittedly is not how most people think about these things.
In general elections, most people do not regard themselves as voting for an MP.
They regard themselves as voting for a government. Parliament is just part of the mechanics for giving effect to their choice.
But there are obvious reasons why it is important to stick to the constitutional view and not the popular one.
One reason is that the popular view doesn't even work on its own terms.
Very few British governments have come to power with an absolute majority of the votes cast at a general election.
They've all been minority governments in electoral terms.
The first past the post system, however, commonly means that they will have an absolute majority, but only in parliamentary terms.
There is also, I think, a more fundamental reason. The diversity of opinion amongst MPs, even within a single political party,
is an important part of the process by which governments achieve the broadest possible basis of consent for their policies.
The popular view of the electoral process would confer a despotic power on ministers
constrained only by their fear of retribution at the polls at the next election,
which may be a long time away.
Conventions are rules of practise, which are not necessarily legally binding, but which it would be politically costly to ignore.
The dependence of our constitution on conventions is often presented as an eccentricity of the United Kingdom.
In fact, all constitutions without exception depends to some extent on conventions.
Law is never enough, even in a highly formal and law based constitution like that of the United States.
The importance of conventions becomes obvious when you see what happens when they are cast aside.
The world is full of countries whose democratic constitutions have been subverted entirely legally by governments set on exploiting legal.
Forms in order to undermine Democratic substance. Chile, Peru, Venezuela, Hungary, Turkey, Russia.
The list gets longer every year, but although conventions matter everywhere,
they are particularly important in an informal and political constitution such as the British one.
In our system, they are the main barrier against the ministerial despotism, which would otherwise follow in our cuisine monarchical constitution.
The problem about constitutional conventions is that they depend on a shared political culture.
A shared political culture means the mutual acceptance that the Constitution must be made to work in the interests not just of one side,
but of the system as a whole. It means a common sentiment about what are the proper limits of political propriety.
It means that not everything that you can get away with legally should be done.
All of this requires a culture which accepts pluralism and diversity of opinion in which opponents are not enemies,
but fellow citizens who disagree and with whom it is necessary to engage.
Now, faced with a parliament which rejected the government's blueprint for relations with the EU after Brexit,
both Mrs May's and Mr Johnson's government's claims an alternative source of constitutional legitimacy displacing parliament,
which was based on the results of the referendum.
Now I have already explained why the referendum, although it was undoubtedly a powerful political argument,
was not and never could be a source of constitutional legitimacy.
The Constitution, in fact,
showed itself to be remarkably resilient in the face of what was a threat to the fundamental assumptions on which it has operated for centuries.
Its famous flexibility enabled it to fight back on two main fronts.
One was the procedures of the House of Commons.
They were significantly changed by Speaker Bercow, with the support of a majority of the House, including an important section of the governing party.
The other was the courts. The courts gave legal effect to the traditional understanding of the role of parliament,
which the government believed to be non-binding and which it has resolved to discard.
The procedures of the House of Commons, arguably the most arcane part of our constitution, but they are a critically important part.
They determine in important respects the relationship between the government and the Legislature.
The British Parliament and other parliaments on the Westminster model are unusual amongst democratic legislatures.
Parliament is not just a lawmaker and an external check on government, it is itself an instrument of government.
Its main function is to support the government or to change it for another which it can support.
And that is reflected in the fact that in the Westminster model, unlike other legislative models,
ministers actually sit in parliament together with their parliamentary private secretaries.
They currently comprise about a fifth of the House of Commons.
It is reflected also in the fact that the ministry is selected for its command of a sufficient majority in the House of Commons,
and it's reflected in the House's rules.
Standing Order 14 of the House of Commons provides that, with limited exceptions, government business shall have precedence at every sitting.
Since at least the beginning of the 20th century, the parliamentary agenda has been decided by the government.
The leader of the House. A government minister puts forward business motions.
The opposition cannot normally put forward its own business motions, nor can it seek to amend the government's ones.
Now, these procedures do not sit well with minority governments.
The whole basis and their sole justification is the assumption that the government
commands a sufficient majority in the House of Commons to get its business through.
The governments of the last parliament.
Well, in a most unusual position, the House of Commons professed to have confidence in Her Majesty's government,
but not in its only significant policy in the face of this difficulty.
Mrs May's government engaged in what can only be described as a crude piece of blackmail.
It tried to force MPs to support its proposals by using its control over the parliamentary agenda in order to stifle anybody else's.
The calculation was that in the face of the Article 50 deadline and the risks of a no deal Brexit, MPs would be forced to submit for fear of worse.
Now that strategy was circumvented by Speaker Bercow, Burka is a controversial figure.
I'm sure I did need to explain why, but this country owes him a very great debt because he adapted the procedures of
the House of Commons to accommodate the problems provoked by minority government.
The speaker is the servant of the House of Commons. He is not the servant of the government,
and it isn't his job to make things easier for a government whose policies do not have the support of the House in December 2018.
Bercow departed from the normal practise by allowing MPs to amend government business motions and put forward that own programme in September 2019,
during the brief period between the return of Parliament from its summer recess and its prorogation.
A week later, the government deliberately declined to move any business motions so as to frustrate any attempt to amend them in that way.
Burke, who allowed private members to take control of the order paper under Standing Order 24,
which provides for emergency debates and had never previously been used for such a purpose.
The speaker allowed it to be used to make time for the so-called BEN Act to be tabled and passed.
Both of these innovations left the government speechless with rage.
But both, as it seems to me, were absolutely necessary to cope with the problems of having a minority government in a representative democracy.
Booked by the speakers inventive approach to procedure, the government resorted to proroguing parliament that provoked what was perhaps the most
controversial of all the constitutional developments arising from the Brexit crisis,
namely the intervention of the courts. A prorogation was a much more significant step in September 2019 than it would normally have been.
Normally, a major change in our law requires some positive action from parliament, usually a statute.
But under Article 50 of the EU treaty,
Britain would automatically leave the EU on the thirty first of October 2019 with or without a satisfactory access agreement.
If Parliament did nothing,
the prorogation of Parliament was conceived as a way of ensuring that it did nothing for long enough to achieve this seismic change,
notwithstanding strong parliamentary opposition as it happens.
This result was prevented partly by the Benn Act,
which was passed in a great hurry after the government announced its plan to prorogue and
partly by the Supreme Court if the government had been right on the question of principle.
It could have prorogue Parliament before the Benn Act was passed and indeed it could have extended the prorogation beyond the twenty first of October.
The government's decision to prorogue Parliament was not exactly a breach of convention.
The power of prorogation is an ancient power. It dates back to the mediaeval origins of parliament.
It had historically been used for a wide variety of purposes, including some obviously political ones in England.
John Major provoked prorogued Parliament in 1997 in order to forestall a debate on the Cash for Questions scandal.
More recently, in 2008, the Prime Minister of Canada, Stephen Harper,
prorogued Parliament in order to pre-empt a motion of no confidence after his coalition partners deserted him and joined the opposition,
thereby depriving him of his majority. But although prorogation was not a breach of convention,
it clearly was a gross breach of the shared political culture which placed parliament at the centre of the political system.
It was a direct assertion of executive power to force through a policy which Parliament opposed without its authority.
There was no doubt in principle that's an exercise of the royal prerogative can be judicially reviewed.
That was established in a famous case before the law lords in 1984.
However, for it to be quashed, there has got to be some legal criterion by which it can be found wanting.
Political outrage is not enough.
So the decision to prorogue Parliament faced the Supreme Court with as fundamental a question as any which a British court has ever had to consider.
The sole basis on which we are entitled to call ourselves a parliamentary democracy is that governments are answerable to parliament.
The question was whether this was a principle of law and therefore binding were a mere matter of political sentiment,
which the government was at liberty to ignore. The court held as we know that it was a principle of law.
Mr Rees-Mogg is said to have described this as a constitutional coup.
This strikes me as rather extravagant. The prime minister is a public officer.
The power to prorogue Parliament is a public power.
The common law has always been reluctant to recognise that a public officer can exercise a public path without being accountable to anyone at all.
Apart from himself, not to the monarch practise.
He is himself exercising the monarch's powers, not to the electorate,
because the electorate has no institutional means of holding the government to account.
Otherwise than through parliament, not to parliament because it would have been prorogued,
the effect would have been to transform a public power into a personal privilege of the prime minister.
Now I have been a vocal critic of the tendency of the courts to arrogate to themselves decisions
which are properly matters for political debate and for parliamentary accountability.
But this was completely different.
The Supreme Court intervened not to claim decision making powers for judges, but to safeguard the decision making powers of parliament.
It reminded us that under our constitution, the government's sole source of legitimacy is the support of the House of Commons.
This was something that the government had been inclined to overlook in informal times.
This question would have gone nowhere in the other courts.
It would have been resolved in accordance with a shared understanding of the political community about the limits of political propriety.
But what happens if that understanding breaks down through the courts simply stand by and say, Oh dear me,
some perhaps most conventional assumptions about politics do not lend themselves to judicial enforcement,
but others are so fundamental to the democratic character of our constitution that their destruction would leave an intolerable void.
And this was such a case. By September 2019,
the impossibility of sidelining parliament and the absence of a majority in parliament for any of the alternative
solutions of the European conundrum had combined to bring the business of the moment to a standstill.
The traditional safety valve in this situation is a dissolution and a general election
waterbed shirt again described this as an appeal from one parliament to the next.
Brexit was the major issue at the resultant election.
The scale of the conservative victory, in my view, confers democratic legitimacy on the government's Brexit policy,
something which the referendum has signalled they failed to do.
The referendum campaign had been fought in a fog of ignorance and the cacophony of
tendentious and unverifiable claims about what the consequences of leaving the EU might be.
It also failed to address the question of what our future relations with the EU were to be like.
None of this was true of the general election, but we have just had.
We are certainly not obliged to agree with the decision to leave the European Union,
but I think that we do have to accept that this is what most of our fellow citizens want.
Whatever the consequences. So what about the future with an overall majority of you?
The government will not need to play fast and loose with constitutional principle in order to get its way.
It would be agreeable to think that as a result, the breakdown of political culture in the past three years was just a passing phase.
There are unfortunately, signs that that may be too optimistic. The first of them concerns the organisation of political parties.
Political parties have a critical function in a parliamentary democracy.
Politics is a marketplace. Parties mediate between the public and the states in their search for a slate of policies which
can attract the widest possible range of support and maximise their electoral prospects.
Parties modify their offering over time in response to changes of public sentiment.
But the political market has taken a serious knock over the past few years.
The problem arises mainly from the tiny membership rolls of constituency associations,
which constitute the basic building blocks of political parties.
Now this has happened over a long period. It began long before the Brexit crisis, some 50 or 60 years ago.
It has happened partly as a result of changes in the patterns of sociability and
partly as a result of the more fickle and less tribal allegiance of most voters.
But the ironic result of the people becoming less tribal about politics is that the political
parties have become more so because of the dwindling membership rolls of constituency associations.
It is too easy for small but well organised groups to take over political parties at constituency level,
as momentum has taken over much of the Labour Party and as UKIP and the Brexit Party have taken over much of the Conservative Party,
constituency associations have immense power. They select parliamentary candidates.
They make the ultimate choice of the party's leader in the House of Commons interests, almost by definition, activists and zealots.
They narrow the party's offering. They limit the choices available to the electorate to relatively extreme positions.
This problem is particularly acute when it happens to both of the major political parties simultaneously.
In a famous lecture delivered in 1976, Lord Hailsham describes the British Constitution as an elective dictatorship.
This, he said, was because of the immense power possessed by a government with an overall majority in the House of Commons.
Lord Hailsham was, I think, completely wrong in 1976.
He looked only at the mechanics of party discipline in the House of Commons and not of the process by which party policy is actually made.
Traditionally, parties have been big tents or broad churches, depending on your ecclesiastical term of vocabulary.
They have not been cramped bunkers or narrow sects. The operation of the political market means that party policy is usually a compromise,
not just a compromise between different groups within the party,
but a compromise with the policy platforms of other parties whose close it is electorally desirable to steal.
That's how the political market works.
It is fundamental to the ability of a democracy to accommodate dissent and to enable us to live together as a single political community.
This is why the narrowing of the intellectual base of both major national parties is such a significant development.
By limiting the electorate's choices to relatively extreme positions,
the polarisation of politics disables the political market and obstructs the process by which we accommodate dissent.
It means that Lord Hailsham was warning about elective dictatorships, which was not justified in his day may shortly be justified in us.
The polarisation of politics has proved extremely destructive of the way that politics work to accommodate a wide range of opinions.
But it's also, I think, systematic of something more sinister than that,
which I hope it is not too melodramatic to call it a developing totalitarian tendency.
There has been a growing intolerance of dissent and a tendency to deny the legitimacy of opposition.
Let's look at the signs.
First of all, there was the consistent habit of shooting the messenger without engaging with the message Governor of the Bank of England,
the British Permanent Representative to the EU, the civil service authors of various projections of the economic impact of Brexit.
The assumptions underlying Operation Yellowhammer,
the contingency plan for a no deal Brexit have all expressed views based on a careful analysis of evidence.
None of them was met by a reasoned or evidence based refutation.
Instead, they were summarily rejected for no other reason than that.
They did not suit the public position of those who wished to leave the EU come what may,
the authors said, must be Remainers and therefore one need not to engage with their views.
In the case of the governor of the Bank of England,
it was seriously suggested by Mr Rees-Mogg that he had no business to express a view on the subject at all.
Secondly, there was the expulsion of 21 MPs from the Conservative Party for failing to support
the government in its willingness to risk a no deal exit in negotiations with the EU.
These MPs were prevented from fudging the election as the Conservatives that they undoubtedly were,
and all of those who tried to fight for their seats as independents were defeated by a more compliant government candidates.
This was not an ordinary measure of party discipline. It was a political purge.
Now, of course, political parties have always had this power,
but they have recoiled from using it in order to keep their electoral appeal as broad as possible.
The present government fought the last election on the basis that they didn't need a
broad appeal because the polarisation of politics would enable them to win without one.
As it turned out, they were absolutely right about that.
Now this has been mainly an issue in the Conservative Party, but the Labour Party has not been far behind.
Last July, it was reported that 70 Labour MPs who were thought to be hostile to momentum were facing the threat of this election.
They were saved from that ordeal by the early onset of the general election.
This kind of approach from dominant groups in both major parties suggests that the extraordinarily narrow political
base of the constituency associations is already beginning to lead to a more or third authoritarian political style.
Thirdly, there was the present government's successful, but I think,
disreputable argument that parliament and the courts were frustrating the will of the people.
This was an attempt to capitalise on anti political feelings which have been mounting in most Western democracies for many years.
But whatever we may think about our politicians, we cannot have liberty without democracy or democracy,
without politics or politics, without politicians to denounce politics as anti-democratic.
Is therefore not just a contradiction in terms. It is bound to lead to a more authoritarian kind of government, which we will not like.
Fourthly, there is the attack on the judiciary. The prime minister has said that his proposals will distinguish between judicial review
designed to protect ordinary citizens from oppressive governmental acts and judicial review,
which is really politics by other means. Now, as I sought to explain in my Reith lectures, there is a real problem about judicial review.
It has tended to intrude into areas that properly belong to parliament and to ministers responsible to.
Parliaments, but I am not sure that when the prime minister talks about politics by other means, he means the same thing as I do.
I suspect that what he means is cases with important political implications whose decision gets in the way of government plans.
This part of the government's programme has quite obviously been provoked by resentment of the Supreme Court's decisions in the two Gina Miller cases.
Yet those decisions did not involve the judicial usurpation of the role of Parliament.
On the contrary, both of them defended parliament against an executive that wanted to marginalise it.
When the government loses a judicial review,
it is invariably because it is found to have acted illegally or to have done something that it has no power to do.
I don't suppose that the prime minister intends to introduce legislation saying that if ministers act illegally or without legal power,
the courts must not intervene if they did it for political reasons.
Not even Mr Putin has done that. The problem lies not in the existence of these powers, which are essential in any civilised society.
It lies in the enthusiasm of some judges to find that the government has acted illegally or without power.
When the real basis of that intervention is simply that, they disapprove of the policies in question.
I think that a change of judicial attitudes is long overdue.
But that is not going to be achieved.
But up to parliament, you cannot have a statute which says judges must hereafter be more respectful of the proper province of politics.
The only way to stop courts from holding that ministers have acted illegally or without legal power is to give ministers unlimited power.
Now it is no doubt difficulties like these,
which explain the attorney general's call for a political element in the appointment
or the confirmation of judges to appreciate the oddity of this suggestion.
You have to imagine what questions might be asked of candidates.
There would be no point in asking them whether they would judicial artists.
They would simply answer that they would be as active as the law and the facts of the case required no more and no less.
You could ask them whether they were tourists. You could ask them whether they will leave us.
That would produce the kind of discreditable consequences that we have seen for many years in the United States,
where judges are overtly identified with the political positions of their appointees.
Indeed, that would seem to be the object of the exercise.
But would the present government be happy to face a bench of judges selected on overtly political grounds by the labour
ministers who were in power from 1997 to 2010 or confirmed by the predominantly labour parliaments of that period?
I suspect not.
This is one of the most ill thought out ideas ever to emerge from a resentful government frustrated by its inability to do what it likes.
It would gravely undermine public confidence in the judicial function,
and it would deter any lawyer of stature for applying from applying for political judicial appointments.
Much better to continue in independent practise, they will say and conserve their self-respect than participate in such a charade of independence.
Finally, there are other minor points as straws in the wind that are sometimes as revealing as major policy statements.
The BBC has been threatened in its financial model.
This has happened at a time when the government is accusing the broadcaster of a bias towards the
liberal instincts which the Conservative Party is busily trying to cut out of its own heritage.
Ministers have conducted an organised boycott of the Today programme.
There was the refusal to countenance a peerage for John Bercow.
Contrary to the long standing tradition on the grounds that he stopped a minority government from behaving as if it had a majority.
This seems to be an act of vindictive mean mindedness, which is unworthy of a government.
These are all symptoms of a frame of mind uncomfortable with dissent,
which feels that it is the duty of every national institution to line up behind the government's.
The prime minister has declared his intention of reuniting Britain after the long Brexit crisis.
I think that she is being unrealistic. People hardly ever unite around the policy, least of all one as controversial as Brexit.
The only thing that ever has ever will unite us is a common loyalty to a way of conducting our affairs that we can respect,
even when we disagree with the outcome. That means a process of decision making which accommodates dissent debates and a diversity of values.
It means a process which recognises the legitimacy of opposition.
And the government, which does not believe that the ends justify any means that are calculated to achieve them,
that these are not just optional extras or rules of courtesy. They are fundamental to the survival of the democratic states.
Aristotle's objection to democracy was that it was inherently unstable.
It naturally transmuted into tyranny. It isn't the law.
The constitutions,
which has prevented this from happening in the century and a half during which democracy has been the prevailing system in Europe and North America.
It is a shared political culture that culture took a very long time to come into being, but it can be destroyed in no time at all.
Thank you for listening to me. Well, thank you very much for that brilliant and concise talk.
I'm Louise Fawcett, I'm head of the Department of Politics and International Relations.
Before asking you for your questions, can I just remind you of a couple of house rules?
We are being filmed. You are on record. If you have a question, raise your hand.
Wait for the microphone and please introduce yourself. The floor is yours.
Thank you, gentlemen. Steve, thank you.
All sorts of things were extremely exciting and relevant. I just there's one phrase which you didn't use, which is Her Majesty's loyal opposition.
The admission was certainly not deliberate. And of course,
the phrase absolutely embodies the notion that there are unwritten understandings which transcend the divisions in the House of Commons.
And it's a phrase that has been used since the end of the 17th century. Other questions over there, so I'm pointing the foreign intervention.
Hi, I'm Alex. Thank you for a talk. I have two questions. The first relates to the role of the opposition right now.
You talk about the breakdown of the political conventions. Talk about there is a problem of growing authoritarianism and the present government.
So what's in your view is the proper role of the opposition in today's political environment.
Second question relates to the judiciary. So we now have a new leadership in Supreme Court, a Scottish, a Scottish leadership.
Do you think that steers towards your decider that politics and judges should be reframed for politics thinking on the role of the opposition?
I think it is too facile to say, as frequently has been said, that the role of the opposition is to oppose.
I think it is very unfortunate that during the last parliament until the very end,
the Labour opposition decided to oppose every proposal on principle.
Essentially, I suspect in the belief that the resulting chaos would be blamed on the government and not on them.
That has proved to be a really rather serious miscalculation. I don't think that it is the automatic duty of the opposition to oppose.
I think it is the duty duty to form a view about the public interest and to stand up for that view in Parliament.
I think that the polarisation which I have described and the retreats of both major parties into their bunkers may well be
at least partially reversed if the Labour Party elects a leader who can be taken seriously as a potential prime minister.
Because I think that that would represent a real threat to the government's current mode of doing business.
It has got away with a great deal it shouldn't have got away with because of the weakness of the opposition,
and that is partly, but not entirely a matter of personalities. As to your second question,
and I think that it is a mistake to assume that a mere change of leadership in the Supreme Court is going to signal a change of legal approach.
The way in which the Supreme Court decides cases is intensely deliberative.
The president of the court is a spokesman for the court.
When a spokesman is required,
which isn't that often but otherwise is simply Priebus into power use and is particularly often to be found amongst the dissenters that applied,
perhaps especially to Brenda Hale. Now there is, however, a much more general tendency, and this isn't confined to the Supreme Court.
There's a much more general tendency at the moment to be cautious about the intrusion of judges into political issues.
This is noticeable both in the Strasbourg Human Rights Court and in the British judiciary, where a somewhat younger generation of judges is,
I think, more careful about the division of functions between the judiciary, the executive and the Legislature.
No, I'm not suggesting that this is going to be a dramatic reversal of current positions,
but I think that it will lead to a very gradual change of attitudes, which to my mind, is a change in the right direction.
Right at the back. Hi, my name is Arsalan Barzani, and I'm an embassy student at St. Anthony's College.
I really enjoyed your lectures, Lord Sumption. And I know and one of the podcasts you've done,
you mentioned you didn't think you've made much of a difference that the law lords became the Supreme Court.
But given that the Supreme Court ruled on the prorogation of Parliament,
would it have made any difference if the Lords being in parliament had to take up this issue?
It would have made absolutely no difference at all.
I think one of the strangest criticisms which has been made of the Supreme Court is that they have got too big for
their boots as a result of becoming the Supreme Court instead of the Judicial Committee of the House of Lords.
The powers of the Supreme Court are identical to those of the law lords.
The procedures of the Supreme Court are identical to those of the law lords.
The way that they decide cases are identical, the kind of people who sit are identical.
There is no case that the Supreme Court has decided since its creation in 2009, which would not in comparable circumstances,
have been decided in exactly the same way by the by the House of Lords Judicial Committee.
There's another hand at the back foot in front. Actually, the well, OK, then the next person making the assumption, my name's Neil McIntosh.
I'm retired after a career spent hovering between public and private sectors niches of what was acceptable.
Can you speak up a bit? Sorry. Yes. There's two ways forward.
I think from what you've said today. One is that we all join political parties and try to.
Manipulate them back to. The sort of fight is that you seem to be positive about, the other is to be involved in activities which.
And. Throw light on the. The activities of politicians known for three years involved with the Freedom of Information campaign,
for example, in the campaign to Freedom of Information.
Oh yes. Well, I don't think the Freedom of Information Act or requests made under it is going to alter the basic problem
of powerful political parties dependence on a very narrow intellectual base at constituency level.
And I. Obviously, one solution would be for people to join political parties.
I think it's unlikely that that's going to happen on the sufficiently large scale to make a difference.
There are other possibilities, although they all have problems. One is to introduce some form of proportional representation,
which would force parties to broaden their appeal or face the risk of fragmentation and electoral loss in consequence.
There are serious disadvantages about systems of proportional representation.
I think first past the post has many has had many advantages for the stability of the British state and the authority of British governments.
But I am beginning to think that the price that we have to pay for that may be too high.
Another possibility, which I have floated in the past is the possibility of having primaries for the selection of candidates,
although one needs to remember that that doesn't always work.
President Trump in the United States was became the Republican Party candidate for the presidency
in the teeth of the establishment of his party entirely because of the primary system,
as it now stands. So I don't think there is an easy solution, and I wish I could suggest one coming to the front narcolepsy calypso nicolaides DPR.
You ended your wonderful lecture on the prospects for reuniting this country,
something I care very much about as a new UK citizen, and I'm sure I'm not the only one in this room.
But you did say that people hardly unite around a policy i.e. Brexit, but they can unite around the way we conduct our affairs.
But couldn't we suggest that once Brexit is done in two days time, Brexit is no longer a policy.
You do it or you don't do it. It becomes actually a question of how we conduct our affairs between the UK and the European Union.
The extent to which we retain control versus collaborate, which judges are in charge of what.
All of this becomes the nitty-gritty of the next phase.
So could we not imagine or is it overly naive that indeed this country could in part reunite over the next phase?
I think that it is desirable and it's actually happening to unite around the proposition that Brexit has a democratic
mandate and that it is a policy which has been legitimately approved by the British public in an election.
In the course of which it's very difficult to suggest that people were under any misapprehension about the consequences.
So I think that recent events have confer legitimacy constitutionally on leaving the EU,
but to say that this is a legitimate democratic decision is not the same as saying that you approve of it.
And I do not think that it's reasonable to expect people who in many cases with considerable passion,
believed that this was an act of folly and a gross piece of economic vandalism.
Now, if that's the view that you take, I don't see that the results of a general election is likely to make any difference to that.
Any more than the results of the election of a conservative government is going to make.
Members of the Labour Party feel that everything is fine with the outcome of the points that you make in the latter
part of your question are really directed to the substance of policy rather than to the techniques for making policy.
And obviously, it would be sensible to do the best that one can cooperatively to ensure them a desirable outcome.
I think probably everybody recognises that Brexit a principle is done and that certain
parts of the Programme for Relations with the EU are effectively matches of commitments.
But when I made that remark at the end of the lecture, which I really meant,
is that there are some attitudes, some constitutional principles which enable people to accept outcomes even.
As legitimate, even when they disagree, and I think that is absolutely the vital factor,
and what does amaze me is a tendency for the present government to feel that actually what's
involved in unity is simply lining up behind an agenda regardless of one's one's own views.
It's a delegitimization of contrary opinions, which I regard as inconsistent with basic democratic practise.
There's someone holding the microphone back and then we'll come back to the front. Tom's an education professor.
I should be very interested to hear your views on the way all schools and
colleges now have by law to teach something called fundamental British values.
And these values are defined by the government as democracy, the rule of law, tolerance and individual responsibilities.
In fact, a friend of mine has done some research recently and found that the major British values were to the queen fish and chips and cooing.
But those on the home curriculum, some teachers, while most teachers that I know are very confused.
How are they to teach democracy and the rule of law in this present situation that we've just been through a Brexit post-Brexit?
Not to mention Britain's place in the near future in the globalised world?
Well, I think that citizenship classes are sometimes called extremely difficult to manage,
even when it's not in the aftermath of a bitterly fought a political crisis.
But you don't have intention those things to inject an element of political partisanship into them, and it's probably desirable not to do so.
So if you have to teach them, I don't see that there's a particular difficulty in teaching them right now.
I would hope that that one would teach exactly the values that you describe.
I mean, the first four and not the second rule and that that might encourage some people to see the direction in which we are going and to change it.
It was a couple of hands at the front, I think maybe not the three or four.
What would your reaction be to parliament by statutes undoing the UK Supreme Court and bringing it back to the law lords,
as has been suggested in the conservative manifesto by Dominic Cummings?
Well, my reaction to that would be that it would be a complete waste of time and money and not
worth arguing about because the unless the powers of the Supreme Court are changed,
it's that whatever label you give is and whether whichever side of Parliament Square it sits, the result is going to be exactly the same.
One more question on this. Thank you, Lord Hampton. My name is Laura Stockdale, I'm a graduate student.
I wanted to ask your opinion on compulsory voting and how that might have affected the outcome of the referendum and also is a
potential solution to the problems that you've described in relation to political parties being concentrated around small minorities.
And in Australia, it's a compulsory voting is a big part of our constitutional system, and there are arguments that it does in fact,
encourage politicians when they develop policies in the lead up to elections to be more general because they
know that every single citizen will be voting at the ballot box and therefore a less drawn to extremes,
as I think you used the term. Thank you.
I don't know, and I don't think anybody knows how the results of the referendum would have been affected by compulsory voting.
There are differences in the voting records of different groups, in particular in general elections.
It's normal for older people to be more assiduous in voting than younger ones.
They're a variety of reasons for that. I won't go into, but that's been a consistent pattern.
But it doesn't seem to have been a pattern in the referendum itself, where the turnout amongst young people was,
although somewhat lower than that of older people was was quite high on compulsory voting generally.
I I don't feel strongly about this, but my feeling is that it's a mistake to make people vote.
The decision not to vote is a perfectly legitimate one.
Moreover, making people vote means that they are less likely to take the responsibility associated with voting as seriously as they otherwise would.
I know that in Australia, you can effectively spoil your ballots and thereby register a neutral vote.
But it seems to me that to require people to come to the polling booths not to vote is.
Somewhat strange. Australia is not the only country with compulsory voting.
The other notable example is Belgium, where compulsory voting produces a very high turnout in European elections.
A species of election which in the whole of the rest of the Europe, has produced notoriously low turnouts.
It is at least of that that has reinforced the Belgians sense of European identity
and depending on one's point of view about an EU that may be thought a good thing.
Thank you. I think we're out of time, but before I ask you to phone call speaker,
can I just announce that next week's lecture same time six of February will be the road somewhere.
The title is the road to somewhere resilient infrastructure for sustainable development.
It's a bit of a change of tone by Professor Jim Hall, but can we all think I'll speak a little something very much.