Mistaken Sumptions? Lord Sumption's Amazing U-Turn on Prorogation Described

I am, unusually,  grateful to ���Private Eye' magazine which, in its current issue (no 1506, page 8), delivers a powerful slap to the formerly rather marvellous Lord Sumption, whom I recently praised here

https://hitchensblog.mailonsunday.co.uk/2019/06/why-you-should-listen-to-the-2019-reith-lectures-.html for his Reith lectures urging judges to stay out of politics.

 

Under the headline ���Lordly Presumptions��� it draws attention to the distinguished judge���s remarkable change of opinion over the case of Al ���Boris��� Johnson and the prorogation.  I have followed, and checked, the quotations which they provided:

 

To begin with, as shown below, he believed the ���Supreme Court��� should stay out of politics, however tempting Mr Johnson���s bad behaviour made it. But for some reason, by the time Lady Hale and her colleagues finally delivered their absurd, unanimous verdict on an issue where unanimity among experienced minds is an absurdity, there was Lord Sumption, endorsing them.

 

This is one of the most extraordinary U-turns in British public life in recent years, not factional or careerist (he is retired) or driven by a huge change in circumstances, just a total, utter change of mind from one side to another in a matter of days, not really explained.

 

Here are the quotations which describe this. I offer no explanation, simply stand back in wonder. I was, I must confess, deeply disappointed by Lord Sumption���s change of mind, not because it didn���t suit me (though of course it didn���t) but because I felt let down, and because I thought the explanation offered was poor and weak. It just goes to prove my normal rule that one admires actions rather than people.  The emphases are mine:

 

 

 

���The Times��� 29th August

 

������However, Lord Sumption, who is also a respected historian, said that while it may be unconventional to prorogue parliament as the Brexit deadline looms, doing so is entirely legal.

"I don't think what the prime minister has said he is going to do is unlawful," he said.

"It might be considered unconstitutional in as much as it might be argued to be contrary to a longstanding convention of the constitution.

"But the question is whether what the prime minister has done is a legal or political disgrace. Is what he has announced the subject of legal rules or of historical convention? "The only objection is that the decision has been taken for questionable political motives. But that is not something the courts should rule on." And as Lord  Sumption wrote for The Times last month: "Judicial review is concerned with acts of public bodies that are said to be unlawful.

Conventions are different. They are rules but not legal rules and breach of them is not necessarily contrary to law.

"Conventions are customary rules of practice, supported by a consensus of opinion, whose force derives from the fact that it would be politically costly to disregard them." Ultimately, said Lord Sumption, "the problem lies in the awkward position of the Queen. She plainly ought not to act inconsistently with either the law or the conventions of the constitution, and presumably she would not wish to. But, in practice, she is likely to follow the advice of her ministers even if it is unconstitutional���.

 

 

 

Then on 10th September he told Prospect Magazine something very similar

 

https://www.prospectmagazine.co.uk/politics/jonathan-sumption-boris-johnson-is-putting-forward-ideas-which-are-essentially-those-of-a-fanatic

 

 ���According to Sumption, there are limits to what can be done by the judiciary. Gina Miller will again fight the government at the Supreme Court. But Sumption said: ���I have my own view, which is that the courts are not entitled to interfere in what is essentially a political issue and not a legal one��� The Supreme Court would really have to turn itself into an arbiter of the political and not just the legal aspects of our constitution.��� Ultimately the crisis is political and the answers must be also. This is in keeping with the thesis of Sumption���s lectures.���

 

 

On ���Newsnight��� on 16th September , (about 15 minutes in https://www.bbc.co.uk/iplayer/episode/m0008lff/newsnight-16092019)  he still thought the Government's case was the better one, saying that ���if they are wise��� the Hale Court would ���take the same view as the Divisional Court��� (i.e. the English High Court which refused to intervene).

 

He said they might take another view because the government had behaved so badly, but said ��� ���serve you right��� is not a good juridical principle. ���

 

 

The Times 25th September

 

But after the day of judgement the following week, the same Lord Sumption was in ���The Times��� (25th September ) again , saying ���What's revolutionary about the Supreme Court's decision is that it makes the courts the ultimate arbiters of what political reason for doing this are good enough. Yet the judgment should be welcomed even by those who believe, as I do, that politics is not the 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 concerned not with the political issues of Brexit but with the process by which those issues are to be resolved. Its effect is to reinstate parliament at the heart of that process.���