In the Times, former Supreme Court justice Jonathan Sumption warns Fraser Nelson that democracy is at risk as power shifts from parliament to the courts, fuelled by lockdowns, a safety-first mindset and the enshrining of principles like DEI in law. Here’s an excerpt:
Some years ago, a man dived into a shallow lake in a Cheshire beauty spot and broke his neck. He sued the council for compensation, saying that the “no swimming” signs were not enough because people were ignoring them. A court agreed. The case made an impression on Jonathan Sumption, not as proof of lawyers going mad (the case was later rejected on appeal), but as proof of a wider trend: the expansion of a safety-first mindset and, with it, the steady erosion of liberty. …
His third collection of essays and lectures, The Challenges of Democracy: And the Rule of Law, develops the theme of his 2019 Reith Lectures: that power is shifting from parliament to the courts in a way that threatens democracy. He says his theory found terrible vindication when Covid arrived and people demanded draconian restrictions that had no basis in science. He sees this not as a freak event but as a leap in a long-term slide towards a kind of soft popular autocracy. “We are entering a Hobbesian world,” he writes in one of the essays, “the enormity of which has not yet dawned on our people.” …
He sees lockdown not as an anomaly but as the moment when Britain “turned the corner” on liberal democracy, “a change in our relationship with the state” that was, essentially, consensual. “It was what people wanted. Government manipulation partly explains that, but I certainly don’t think it’s the whole of it. More important was a more general propensity of the population to look to the state for things that the state is actually not capable of doing.” In this case, stopping a virus in its tracks. …
Rarely among lawyers, Sumption is critical of what he calls “the legal view” of society: that certain principles (equality, diversity) ought to be enshrined in statute and be put outside the reach of politics. “There are lots of people who essentially want their own social policies to have the force of law, preferably a fundamental law which governments could not encroach upon.” The Equality Act and the Human Rights Act both made it easier to sue using judicial review. “This is actually a serious problem and it can only really be dealt with by raising the threshold at which you can quash or can criticise a government policy,” he says. …
Is this what he means by the death of democracy: more laws, red tape and courts governing ever more of our lives? “No, I don’t think the courts are the main enemy. I think that the main enemy is the public at large.” Too many people want the “smack of firm government”, he says. “It’s an image that perfectly summarises what many people want. A smack. It implies a nanny, with a great rod.” …
One improvement, he says, would be withdrawing from the European Convention of Human Rights. “My view is that we should enact the convention in its proper language, and transfer the power of interpretation to our own courts from the Strasbourg court.”
Worth reading in full.
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