Democracy Trumps Courts

Lord Sumption was clearly by accident or design a superb choice to deliver the Reith lectures this year. The current hysteria is seeing the courts and judges assailed by a plethora of very wealthy litigants, from London to Edinburgh and Belfast, litigants fired with zealous righteousness and with faces infused to a shade of puce with the justice of their cause. They are seeking to find a court, any court, that will assist them in blocking the nation’s democratic decision to leave the EU. Sumption had this to say – albeit as part of a lecture on Human Rights law, but it fits -

Democracy, in its traditional sense, is a fragile construct.It is extremely vulnerable to the idea that one’s own values are so obviously urgent and right that the means by which one gets them adopted don’t matter. That is one reason why it exists in only a minority of states. Even in those states it is of relatively recent origin and its basic premises are under challenge by the advocates of various value-based systems. One of these is a system of law-based decision making which would entrench a broad range of liberal principles as the constitutional basis of the state. Democratic choice would be impotent to remove or limit them without the authority of courts of law. 

Now, this is a model in which many lawyers ardently believe. The essential objection to it is that it is conceptually no different from the claim of communism, fascism, monarchism, Catholicism, Islamism and all the other great isms that have historically claimed a monopoly of legitimate political discourse on the ground that its advocates considered themselves to be obviously right. But other models are possible. One can believe in rights without wanting to remove them from the democratic arena by placing them under the exclusive jurisdiction of a priestly caste of judges. One can believe that one’s fellow citizens ought to choose liberal values without wanting to impose them.

This recourse to private law is in many cases an attempt by those who do not enjoy democratic support  for their viewpoint to seek to bludgeon, compel and coerce a majority whom they cannot outvote to give them their own way. As such, this use of our courts and judges is a clear abuse of process in an advanced democracy. It is open only to the wealthy, and if it succeeds it unbalances our democratic balance. Remember that Mrs Miller only has one vote, and it is worth exactly the same as your vote or my vote, however wealthy and well-connected she may be.

Sumption also examines in depth the relationship between law and democracy in the area of, for nations that have one, the constitution. Spolier alert: he is opposed for very clear reasons to the adoption of a written constitution for Britain, and I’ll tackle this in a future post.