Sumpers speaks

[Copied here so I can reference it.]

COMMENT | LORD SUMPTION
september 24 2019, 3:00pm, the times
Supreme Court ruling is the natural result of Boris Johnson’s constitutional vandalism
lord sumption

Where does law begin and politics end? Any government’s relationship with parliament is bound to be political. Ever since the 18th century, ministers have made use of the power to prorogue or (until 2010) dissolve parliament for political advantage.

There was a consensus that they should not abuse the power, but what amounted to abuse was itself a political question, not a legal one. What is revolutionary about the Supreme Court’s decision is that it makes the courts the ultimate arbiters of what political reasons are good enough.

Yet the Supreme Court’s judgment should be welcomed even by those who believe, as I do, that politics is not the proper business of courts of law. The objection to judicial intervention in politics is that it undermines the democratic legitimacy of public decision-making. The court’s judgment, however, is not concerned with the political issues surrounding Brexit. It is concerned with the process by which those issues are to be resolved. Its effect is to reinstate parliament at the heart of that process.

The question for the rest of us is whether we still believe in the parliamentary model that the Supreme Court has vindicated. Underlying the debate about the merits of leaving the European Union, there is an even more fundamental conflict between two opposing claims to democratic legitimacy, one based on the referendum and the other on the parliamentary process. Most of our difficulties over the past three years have arisen from the misguided attempt to insert a referendum into a fundamentally parliamentary system.

I have lost count of the number of times that prominent Brexiters have declared that by authorising the referendum Parliament delegated its sovereignty to the majority. The argument is completely untenable. Leaving the EU and creating other arrangements to replace it requires new laws. It requires complex political judgments about our future relations with the EU.

Parliament is the supreme source of law. It is also the only body to which ministers can be continually accountable for their political judgments about Brexit or anything else. It is central to our whole political system. A referendum can serve none of parliament’s functions. It is not a source of law. It is not a mechanism for holding ministers to account. It is a snapshot of public opinion, and as such an important political fact for parliamentarians to take into account. But that is all it is.

The parliamentary process is fundamental in another, even more important sense. It is a mechanism for accommodating opposing opinions and interests in our society. To gain power, political parties have to appeal to a wider base than tribal faithfuls and single-issue fanatics.

A legislature whose membership reflects the balance of political parties is therefore a natural forum for compromise. In a Brexit context this might mean membership of the customs union or the European Economic Area or something similar under a different name. These half-way houses are in many ways impure and unsatisfactory. Few people would make them their first choice. But it is probable that a larger proportion of the electorate could live with them than with any other solution.
Appeals to the referendum as an alternative source of legitimacy are really calls to reject compromise. Proroguing parliament was a method of circumventing the political process, and avoiding the pressure to compromise that is inherent in it. It is absurd to criticise the House of Commons for being just as divided as those whom it represents; and dangerous to obstruct its attempts, however laborious and accident-prone, to accommodate our divisions and avoid the aggressive extremes at either end of the Brexit spectrum.

The British constitution famously consists of many things that are not law but political conventions. Some of them are rules of practice. Others are attitudes of mind, part of a shared political culture that is based on respect for the centrality of the House of Commons. Political conventions are a better, more flexible and more democratic alternative to law. But if we are to avoid a wholly legal constitution, we must honour them.

The present government has taken an axe to convention. It has sought to use the awesome prerogative powers of the Crown, but without the accountability to parliament that alone makes the existence of those powers tolerable. It has been determined to disregard our only collective political forum. This is something entirely new in British politics.

The natural result of constitutional vandalism on this scale is that conventions have hardened into law. That is the effect of the Supreme Court’s decision. It is infinitely regrettable that it should have come to this, but better than leaving a void governed by neither convention nor law, in which the government can do whatever it likes.

The moral is that under our constitution 52 per cent cannot expect to carry off 100 per cent of the spoils. They have to engage with the rest. That is what parliament is for.

[Lord Sumption retired as a justice of the Supreme Court in December last year.]