Why You Should Listen to the 2019 Reith Lectures

I thought I would try to explain here just why I am so keen on the current series of Reith lectures by Jonathan Sumption. There have now been four, the latest being a clever examination of the profound difference between the US and British constitutions. This fourth lecture, by the way, pays too little attention to the use of so-called ���Private Members��� Bills���, in fact covertly backed by government grants of time and drafting assistance, to enact legal changes that have never been put to the voters, and never will be (E.g. the abolition of the death penalty, and the creation of abortion on demand) .

 

These can be read or listened to here:

 

https://www.bbc.co.uk/programmes/m00057m8

 

And I will come to the third lecture, on the subject of Human Rights, which is most interesting, but there is much more to them than that. The level of thought and intelligence on display is really quite unusual. Dammit, the man actually thinks about what he says.  Lord Sumption, born in 1948, is a historian first and a lawyer second, and was educated at Eton and Oxford, before the most frightful effects of the 1960s revolution had undone education in this country, and in the era when the fiercely rigorous and meritocratic Grammar Schools were keeping the Public Schools honest. Now the big private schools just have to amble along, plucking flowers from the hedgerows,  and their pupils will score top grades in every devalued exam there is. .

 

The first lecture, entitled ���Law���s Expanding Empire��� was an unusual admission that the law and the courts have in recent times invaded areas of life they previously stayed out of. This is a huge change and , though Lord Sumption has yet to note the source of much of it - the insane licensing by Margaret Thatcher and John Major  of no-win, no fee��� lawsuits in this country-  I am still hoping that he will. All emphases are mine

 

 

He says ���My subject, in these lectures, is the place of law in public life. The twin themes that I want to explore are the decline of politics and the rise of law to fill the void. What ought to be the role of law in a representative democracy like ours? Is there too much law? Is there, perhaps, too little? Do judges have too much power?

 

He then set out some of these growths ���In a single year, ending in May 2010, more than 700 new criminal offences were created, three-quarters of them by government regulation. Now that was, admittedly, a bumper year but the rate of increase continues to be high. On top of that, there is the relentless output of judgments of the Courts, many of them on subjects which were hardly touched by law a century ago. The powers of the Family Courts now extend to every aspect of the wellbeing of children, which once belonged to the enclosed domain of the home. Complex codes of law enforced by specialised tribunals regulates the world of employment. An elaborate system of administrative law, largely created by judges since the 1960s, governs most aspects of the relations between government and the citizen. The special areas that were once thought to be outside the purview of the Courts, such as foreign policy, the conduct of overseas military operations and the other prerogative powers of the State, have all, one by one, yielded to the power of judges. Above all, since 2000, a code of legally enforceable human rights has opened up vast new areas to judicial regulation. The impact of these changes can be gauged by the growth of the legal profession. In 1911 there was one solicitor in England for every 3000 inhabitants. Just over a century later, there is about one in 400, a sevenfold increase.���

 

 

Later he noted ���The law regulated religious worship until the 18th century. It discriminated between different religious denominations until the 19th century. It regulated private and consensual sexual relations until quite recently. Homosexual acts were criminal until 1967. Today the law has almost entirely withdrawn from all of these areas. Indeed, it���s moved to the opposite extreme and banned the discrimination that was once compulsory. Yet, in other respects, we have moved back to the much older idea that law exists to impose conformity. We live in a censorious age, more so perhaps than at any time since the evangelical movement transformed the moral sensibilities of the Victorians. Liberal voices in England, in Victorian Britain, like John Stuart Mill, were already protesting against the implications for personal liberty. Law, Mill argued, exists to protect us from harm and not to recruit us to moral conformity. Yet, today, a hectoring press can discharge an avalanche of public scorn and abuse on anybody who steps out of line. Social media encourage a resort to easy answers and generate a powerful herd instinct which suppresses, not just dissent but even doubt and nuance. Public and even private solecisms can destroy a person���s career. Advertisers pressurise editors not to publish controversial pieces and editors can be sacked for persisting. Student organisations can prevent unorthodox speakers from being heard. These things have made the pressure to conform far more intense than it ever was in Mill���s day.���

 

He warns : ���We have made a leviathan of the State, expanding and harnessing its power in order to reduce the risks that threaten our wellbeing. The 17th century may have abolished absolute monarchy but the 20th century created absolute democracy in its place.���

 

In his second lecture ���In Praise of Politics���, Lord Sumption says this obvious but seldom-recognised thing.

 

���Democracies operate on the implicit basis that although the majority has authorised policies which a minority deplores, these differences are transcended by their common acceptance of the legitimacy of its decision-making processes. Self-evidently, majority rule is the basic principle of democracy but that only means that a majority is enough to authorise the State���s acts. It isn���t enough to make them legitimate. That is because majority rule is no more than a rule of decision. It does nothing to accommodate our differences, it simply restates them in numerical terms. A democracy cannot operate on the basis that a bare majority takes a hundred percent of the political spoils. If it did, it would harbour large and permanently disaffected groups in their midst who had no common bonds to transcend their differences with the majority. A State based on that principle would quickly cease to be a political community at all. That is why all democracies have evolved methods of limiting or diluting the power of majorities. I���m going to talk about two of them. They are, really, the only two that matter. One of them is representative politics and the other is law.���

 

And here we come to the problem created by ���Human Rights��� charters, such as the European Convention, especially article 8, ��� ���Everyone has the right to respect for his private and family life, his home and his correspondence���  and the 14th Amendment to the U.S Constitution as now interpreted, especially its supposed provisions on ���privacy���. Both have been tortured into the basis of all kinds of social liberalism, despite the fact that it merely says ���Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.���

 

It is at least arguable that these documents have absolutely no bearing on such issues as abortion and same sex marriage. But even if they have, why should they confer the particular ���rights in such matters which have been awarded by the courts.

 

Sumption asks : ���What is the source, independent of popular endorsement, which enables us to identify some rights as so fundamental that they must not be removed or limited by political decision?

 

My simple answer to this question is that there is no such source and that these alleged rights do not exist , see https://www.theylj.co.uk/human-rights-do-not-exist/

 

Sumption, as readers or listens will gather, will not go quite that far, at least explicitly. He has some fun showing that judges have conjured much of the new human rights law out of thin air.  But in fact he says something almost equally dangerous, part of which I am reluctant to quote for fear of breaching Godwin���s Law.

 

He first of all notes that it is not really the job of judges to make such decisions in a free country ���Judges exist to apply the law. It is the business of citizens and their representatives to decide what the law ought to be. Many of the issues thrown up by the convention are not even issues between the state and the individual. They are really issues between different groups of citizens. This applies particularly to major social or moral issues, such as abortion, fetal tissue research or medically assisted suicide, about which opinion is often deeply divided. In a democracy, the appropriate way of resolving such disagreements is through the political process.���

 

He continues by asking

 

���Who is to decide what is necessary in a democratic society, or what purposes are legitimate, or what the prevention of crime, or public health, or the economic wellbeing of society requires, or what is a fair balance between the individual and the community? These are all intensely political questions. Yet, the convention reclassifies them as questions of law, thus reforming them from the realm of democratic decision making and referring them instead to national and international courts.���

 

And then comes this great thumping kick in the pants for liberal judges who wish to use the courts to impose their own personal liberalism on the country:

 

���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 lawbased 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.

Well, that���s the sort of liberalism I can get along with. I noted, after hearing this, that I wasn���t the only person who had noticed it. Jenni Russell, one of the smartest left-wing commentators in the business, wrote an article in ���The Times��� (alas, behind a paywall) in which she said ���On Tuesday morning I listened to a radio lecture and changed my mind on a key subject. This doesn't happen much, to any of us. Evidence shows once we have an opinion we tend to stick to it. Life is too dense and complicated for us to spend time reviewing our attitudes or researching each one. But this lecture made me realise I'd jumped to a conclusion from false assumptions. Sadly this may not be an isolated case.

���The title of the lecture was so dull and worthy that I'd never have tuned in unless by accident, and because the alternatives were worse. I promise it's better than it sounds. Human Rights and Wrongs was one of this year's Reith Lectures by the former Supreme Court justice Jonathan Sumption. It was an eloquent attack on the role of the European Convention on Human Rights in British law, and an argument for withdrawing or distancing ourselves from the judgments made by the court in Strasbourg, of which our courts must take account.���

 

Judge for yourself whether she got this right. But words which can make you think are rare, and all this is available to us, uninterrupted by ignorant presenters or silly music, jingles or advertisements, quite free of charge, on the wireless, for which you don���t need a licence. Just for a few minutes a week, you can feel a bit proud to be British.