Mr No Deal versus Mr No Brexit

“I still hope that Prime Minister Johnson will not like to go down in history as ‘Mr No Deal’.”

Speaking as he does from an institution which routinely misunderstands the UK, and Leavers in particular, Donald Tusk was at least half right in this assessment yesterday. And half right is an improvement on condemning Leavers to ‘a special place in hell’, as he once did.

Boris Johnson has no particular desire “to go down in history as ‘Mr No Deal'”. Indeed, he would like a deal if a decent and doable one is available – as he reiterated in response to Tusk’s comments.

But it seems that the EU Commission is again misjudging the moment, and the priorities of its interlocutor. ‘Mr No Deal’ might not be the Prime Minister’s ideal epitaph, but Tusk appears to have forgotten that for a Leave-supporting British leader there is a worse – far worse – thing to go down in history as. And forcing a choice between the two can only lead to one answer.

Rather Mr No Deal than Mr No Brexit.

Read More

Gareth Lyon: Post-Boris. The Prime Minister is more Lyndon Johnson than his jokey former self.

Gareth Lyon is a councillor in Rushmoor and the Chairman of the Aldershot and North Hants Conservative Association.

“At times history and fate meet at a single time in a single place to shape a turning point in man’s unending search for freedom.”

“Kennedy promised. Johnson delivered.”

It has been often remarked by those who hold grave doubts about the new Prime Minister that the Boris Johnson of 2019 is far removed from the Boris Johnson of 2012.

People who make this remark are drawing attention a certain loss of levity once held by the Mayor of London who was able to defy the gravity of mid-term Conservative unpopularity whilst suspended by a zip-wire.

Inevitably the seriousness of the offices he has held, and the acrimony of politics in recent years, have led to a more grounded and mundane take on the man. Just as in the time before he ascended to City Hall, there are those who doubt that stunts and flights of fine rhetoric alone can carry him to his desired destination.

Ironically, the most serious minded, long-term and conviction-driven decision of Johnson’s career, the decision to lead the Vote Leave campaign, is also responsible for many of the most vehement accusations of vacuity and vanity levelled against him.

Yet, the consequences of the Leave victory and the ensuing train-wreck of his leadership bid may also have been the making of the true Mr Johnson.

For we are now witnessing him in the post-Boris era, in which the whiff-whaff waffle and the loquacious Latin has been stripped away, and the inner Lyndon Johnson is what is left.

Just as it took required the sad and untimely end of an eloquent and widely liked politician for Lyndon Johnson to ascend to the office he had coveted for much of his life, so to it is with our new Prime Minister. The only oddity is that in our modern case both characters were in the same man.

If the leadership election, in both Parliamentary and member stages, were anything to go by, then Johnson is showing an almost cold and brutal adoption of machine politics in the manner of his namesake.

Lyndon Johnson’s focus on delivery was perhaps unlofty but it was effective.

The legislative achievements of his Presidency were great in number and transformative – in marked contrast to the energising but ultimately empty rhetoric of the vastly overrated Kennedy.

Whether good (civil rights, voting rights and immigration reform), bad (medicare, Medicaid, The Great Society) or good but badly executed (public service broadcasting and Vietnam) there is no denying that Johnson delivered.

The early signs are that Boris Johnson’s administration will be similarly focussed on delivery. The appointment of many of the most effective operatives from his time in City Hall and the Vote Leave campaign are mirrored in what now seems to be an almost revolutionary move in having a cabinet united in resolve and purpose.

Some of the most Lydonesque tendencies of new administration were also apparent in the treatment of those who made the wrong choice in the recent leadership election and paid a very public price. The signal this sends to those considering disloyalty in future will have been received by those it was intended for.

Similarly, it is notable that some of those who are loyal and competent and have proven to be so in the past have missed out on the elevation they felt they earned. This too sends a clear message – that these are necessary but not sufficient qualities for promotion and survival.

On a final note which may hold some promise as a precursor – Lyndon Johnson’s early nickname of “Bull***t Johnson” overtime gave way to the rather more complimentary “Landslide Johnson”, as he blew away the opposition party’s ideologically committed opponent in a general election.

Overall this metamorphosis should be seen as a positive one. Whilst we may look back with sadness at the loss of the preceding jovial Johnson, with the need to get Brexit done and get Britain’s politics moving again, we may find that we can “go all the way with LBJ…”

Read More

Court case against Boris Johnson’s no-deal Brexit plans to begin September 6

A court is set to decide whether British Prime Minister Boris Johnson can suspend parliament to force through a no-deal Brexit just days before an expected showdown with MPs.

The case brought by more than 70 MPs and peers was scheduled by a judge this morning for September 6. Downing Street is poised for a House of Commons challenge to its Brexit plans just three days later, on September 9.

Boris Johnson has vowed to take the U.K. out of the EU, deal or no deal, by the current Brexit deadline of October 31. He has refused to rule out suspending parliament to stop MPs using constitutional tactics to block his plans.

An initial hearing for the case took place at the Court of Session in Edinburgh this morning. The judge, Lord Docherty, scheduled the “substantive hearing” for the first week of September.

Lawyer Jo Maugham from campaign group the Good Law Project, which coordinated the petition, branded Johnson “The Charlatan” as he confirmed the new date on Twitter.

Labour MP Ian Murray, who was one of the parliamentarians who signed the petition against Johnson, told POLITICO: “The courts are there to enhance our democracy by giving the public the ability to hold the government to account.

“It’s great progress to have a full hearing in September before the PM can consider closing down parliament to force through a no-deal Brexit.”

SNP MP Joanna Cherry, who also backed the petition, tweeted: “Litigation can’t stop Brexit or make [Scottish] independence happen but it can be used to make sure that right wing politicians like Johnson don’t try to subvert democracy. There’s no mandate for no-deal Brexit & in Scotland no mandate for any Brexit.”

Parliament is gearing up for a showdown on September 9 because the government must publish a report on the ongoing political stalemate in Northern Ireland on September 4 and hold a debate in the Commons five days later, which could be hijacked by anti-no deal MPs to try and force a Brexit extension.

Read More

Trump envoy: US would ‘enthusiastically’ back no-deal Brexit

America would “enthusiastically” support a no-deal Brexit, U.S. National Security Adviser John Bolton said on Monday during a visit to London.

“If that’s the decision of the British government, we will support it enthusiastically, and that’s what I’m trying to convey,” Bolton told reporters on the first day of his two-day visit to the British capital, according to the Guardian. “We’re with you, we’re with you.”

He said the U.S. would consider striking sector-specific deals ahead of a full-scale trade pact.

“The ultimate end result is a comprehensive trade agreement covering all trading goods and services,” Bolton said. “But to get to that you could do it sector by sector, and you can do it in a modular fashion. In other words, you can carve out some areas where it might be possible to reach a bilateral agreement very quickly, very straightforwardly.”

Bolton also took aim at Brussels, saying: “The fashion in the European Union is when the people vote the wrong way from the way the elites want to go, is to make the peasants vote again and again until they get it right. There was a vote — everyone knew what the issues were. It is hard to imagine that anyone in this country did not know what was at stake. The result is the way it was. That’s democracy.”

He added: “Britain’s success in successfully exiting the European Union will be a statement about democratic rule and constitutional government. That’s important for Britain. But it’s important for the United States, too. So we see a successful exit as being very much in our interest, and there’s no quid pro quo on any of these issues.”

Bolton also said he couldn’t see a threat to the Good Friday Agreement as a result of Brexit, the Guardian wrote.

Bolton was expected to urge Britain to align more closely with America’s stance on Iran and on Huawei’s involvement in 5G telecoms networks, but he told reporters that Washington understood Brexit was the priority, given Britain’s Prime Minister Boris Johnson had promised to exit the EU by October 31.

“The U.S. government fully understands that in the next 80 days the U.K. government has a singular focus on the Brexit issue, so that we’re not pushing for anything on these broad and complex questions,” he told reporters.

The comments came after Johnson joined a meeting with Bolton and senior officials on Monday.

Bolton said Johnson’s relationship with U.S. President Donald Trump had “got off to a roaring start,” with the two having shared multiple phone calls since he assumed the British prime ministership. Their most recent conversation was on Monday, when Trump “expressed his appreciation for the United Kingdom’s steadfast partnership in addressing global challenges,” according to the White House readout of the call, and said he “looks forward” to meeting Johnson “personally in the near future.” Trump and Johnson are both expected to attend the G7 summit in Biarritz, France at the end of the month.

This article is from POLITICO Pro: POLITICO’s premium policy service. To discover why thousands of professionals rely on Pro every day, email pro@politico.eu for a complimentary trial.

Read More

Kyle Murray: Putting Parliament in Its Place: The Pro-Brexit, Democratic Case for a Second Brexit Referendum

I am a Brexiteer. I am also a democrat (indeed for me the two are very much connected). In this post, I argue that despite mainstream protests to the contrary, democratic principle points to a strong case for a second Brexit referendum. The argument also gives some food for thought regarding the democratic credentials of the UK constitution, and its prizing of Parliamentary sovereignty.

Most Brexiteers strongly disagree with the idea of a second referendum. The case for a second referendum is often seen as a “Remainer’s” cause. This piece argues that these stances are misguided: a consistent and rigorous application of democratic principle alone leads to a compelling case for a second referendum. This need not be a Remain case – in fact, making that central to the argument fails to take democratic principle sufficiently seriously.

To make this case, I will first elaborate a conception of democratic legitimacy. This provides the positive case for a second referendum: it is the ideal expression of political equality and respect for the decision-making capacity of individuals. I will then consider the popular “democratic” argument against a second referendum, showing it to be contradictory, or at the least, to lead to democratically dubious results. As well as making the case for a second referendum, this argument has wider implications for UK democracy, which will be drawn out along the way.

The Democratic Case for a Referendum

On the account presented here, the key to democratic legitimacy is political equality: democracy treats each individual, their views, beliefs and value judgements, equally in the process of collective decision-making. Majority decision-making in particular does this by according each participant maximum decisional weight compatible with giving the same to others. Waldron praises this as treating each morally autonomous individual with “respect”.

A referendum, operating on a simple majority, reflects this respect in a direct and immediate way: participants vote on the outcome itself, and their votes are given maximal weight. On this basis, “going to the people” in a referendum – including on the future of Brexit – would be the ultimate expression of democratic value: the people themselves, and everyone equally, are given maximal power to determine the decisions under which they live.

The debate since the original Brexit referendum has revealed a number of very important choices about how we Brexit. Deciding between these involves a number of value-laden judgements and balancing exercises: May’s Deal vs No Deal; both of these options (and possibly others) vs Remain. These are important decisions on which people disagree and which, on democratic principle, individuals themselves should have an equal say.

That this is a question of balance shows why each of the above options must be on the ballot paper – individuals must be given maximum power to weigh up and decide upon the options before our country. Taking No Deal off the table, for example, only gives part of the equation and removes the ability of people to set their own relative priorities. Taking Remain off the ballot paper does the same. This is why a referendum purely on how we Brexit, but not, in addition, whether, would be unsatisfactorily incomplete. It might carry a fleeting appeal for the hardcore Brexiteer, but in terms of its democratic credentials, such a referendum would fall short.

While giving individuals a maximal say on the various options available strengthens the democratic case for a second referendum, I have carefully avoided referring to any alleged “change in conditions” since 2016, or the “need” to avoid a No Deal. Nor have I argued that we need a referendum to break the current parliamentary deadlock, or in order to make the case for Remain. These are popular arguments among those who do call for a second referendum, but they are not necessary to make the case.

They are also instrumental concerns, rather than democratic ones. The implication is that, were it not for these factors, the case for a second referendum would fall short. This fails to take core democratic principle sufficiently seriously: democratic participation is not something that needs to be earned or granted only where specific circumstances require it – it is, as Waldron often puts it, the “right of rights”.

Democratically Undemocratic? The Democratic Objection to a Second Referendum

In light of the democratic credentials of referendums, it is peculiar that the apparent mainstream position is that a further Brexit vote would be anti-democratic. In addition to prominent Brexiteers, this has long been the Government line, with Theresa May often reminding us that ‘we had the people’s vote’, and ‘the people voted to leave’.

In short, the argument is that we must “deliver” on the “will of the people” expressed in the 2016 referendum. Anything else would be undemocratic. As one commentator put it, a ‘second referendum would erode the very basis of democracy by suggesting that rule by the majority is an insufficient condition for democratic legitimacy’.

The premise of this argument – that the 2016 referendum result must be delivered – treats the referendum as a legitimacy-giving device. Indeed, it is apparently the ultimate form of political legitimacy, giving the 2016 result a sacrosanct status as something that categorically must be delivered by MPs.

On the grounds above, this premise is well placed. However, while the objection is right to attribute strong democratic legitimacy to the result of a direct majority vote, it falls into an immediate tension in limiting this to the 2016 referendum alone.

The problem is that if the referendum process does give the 2016 result supreme democratic legitimacy, why does it not do the same for any further referendum? The qualities, and therefore democratic value, of the process remain unchanged – it is still a majoritarian process giving maximum decisional weight to individuals directly over collective decisions. Yet, a second referendum is given a toxic status and becomes the antithesis of democracy.

Unless this question can be satisfactorily answered – from democratic principle itself – the case that a further referendum would be undemocratic appears straightforwardly self-defeating. It would treat the majoritarian referendum process both as a legitimacy-giving and legitimacy-robbing device.

The obvious difference, it might be replied, is that we have already had a referendum. Perhaps this affects the democratic legitimacy of a second. However, treating this as making the difference leads to some democratically dubious results.

Endowing only the first referendum with democratic force leads squarely into the problem of entrenchment: the “will of the people” at one point in time – 2016 – is held to bind the people at a future point in time. Effectively, the current “will of the people” is indefinitely sacrificed to the past on the altar of “democracy”.

This irony would not be lost on classical democratic theorists: the problem of inter-temporal entrenchment – or the “dead hand of the past” – can be traced back to Jefferson and Paine. Perhaps not enough time has passed for this to count as “inter-generational” entrenchment (or for the hands to literally be “dead”). Indeed, it is difficult precisely to draw the line showing when a new “generation” supposedly begins. But regardless, the point stands that the people at one point in time are bound by the past. This is a further reason why a referendum without Remain as an option would be unsatisfactory on democratic principle.

Thus, on the “democratic” objection to a further referendum, from 2016 onwards individuals are in effect rendered powerless on all matters Brexit. This is far from democratic, on the conception above, and indeed on the conception assumed by those who prize the “will of the people”.

Putting Parliament in Its Place

The undemocratic picture gets even worse once a side effect of denying a second referendum is factored in. While citizens are disempowered, the Government and Parliament are left in control. The power to approve (or not) the final Brexit deal is – following some intervention – left to MPs. We are where we are because they have repeatedly rejected that deal.

MPs have also to date rejected the idea of a further referendum. First, in the series of indicative votes, then in making clear that even the promise to offer a referendum on the deal – to confirm the actual views of their constituents – was not going to be enough to get it through.

The result is that those who argue against a further referendum on the deal, and, yes, on Brexit itself, are arguing to disempower the people on a number of important, inter-related questions, such as those stated above: the balance between the benefits and drawbacks of the Withdrawal Agreement as against the benefits and drawbacks of No Deal; the benefits and drawbacks of each of the above as against Remain.

These are important, value-laden judgments, on which many hold views. The irony is that those who reject a further referendum on the basis that we must respect the “will of the people” are in fact disempowering those people on these crucially important questions. They are all left to MPs.

It might be replied that Parliament is democratic – indeed, “but we’re a parliamentary democracy” has become something of a soundbite. However, while we do have a long history of Parliamentary democracy, this says nothing of its democratic credentials vis-à-vis referendums.

Put bluntly, in democratic terms there is no competition. Not only is a direct majoritarian vote the ideal reflection of respect for the decision-making capacity of individuals, it throws into sharp relief some problematic elements of representation.

Despite its reputation as pleasingly “democratic” – thereby providing the normative underpinning for the doctrine of parliamentary sovereignty – representation has a prima facie elitist character. This is due to the inequality in decisional influence at its heart. Taken back to basics, representation involves giving greater control – greater decisional weight – to a small group of people, while leaving the rest with, at best, only indirect influence.

This not only underlines the point about the democratic credentials of a second referendum, it leads to a wider point about UK democracy. We have a system where MPs have the sovereign authority to decide the questions which face our society, where direct democracy – giving individuals this power – is seen very much as a special occasion (and to some not a happy one) grantable only on the whim of Parliament.

We have a system where the news of the day is whether Parliament will let a Government force the country down a No Deal route, while repeatedly refusing to allow individuals themselves to take this decision. In such a system, democracy and its underlying values of political equality and respect for the decision-making capacities of individuals is far from achieved. Referendums, and particularly a direct power for citizens to initiate them (as in Switzerland, for example), are a way of tempering this imperfection inherent in representative democracy.

Conclusion

I have put forward a principled democratic case for a second referendum: it would give individuals maximal decision-making power on the future of Brexit, and the value-judgements implicated. “Democratic” arguments against such a vote, while common, are misguided, and arguably give rise to democratically dubious results.

This case turns up some food for thought regarding the state of UK democracy more generally, highlighting the disempowerment and elitism at the heart of its lingering attachment to a pure form of Parliamentary democracy, in which direct decision-making is seen as an occasional pathology.

Brexit was seen by many as a chance to reinvigorate our democracy. Indeed, the principal reason I supported Brexit in the first referendum – and still do – is that it was the more democratic option; a chance to enhance the future self-government of the UK, and to move power closer to its individual citizens. The argument in this blog has tried to take this sentiment seriously. Parliament has, with a little help from the courts, staked its claim in the process. But for a democrat it is not only the Government which needs putting in its place – it is Parliament too. The Brexit process itself seems a good place to start.

Many thanks to Robert Craig, Gavin Phillipson and Alison Young for, as ever, thorough and helpful comments on previous drafts.

Kyle Murray is a Teaching Fellow in Public Law and Human Rights and PhD Candidate at Durham Law School, Durham University.

(Suggested citation: K. Murray, ‘Putting Parliament in Its Place: The Pro-Brexit, Democratic Case for a Second Brexit Referendum’, U.K. Const. L. Blog (26th Jul. 2019) (available at https://ukconstitutionallaw.org/))

Read More

Richard Ekins: Reflections on Democracy’s Foundations

This is part of a series of posts in which Richard Ekins reflects upon Lord Sumption’s Reith Lectures. You can find the first posts here, here and here.

In his fifth and final Reith lecture, broadcast yesterday morning and entitled “Shifting the Foundations”, Jonathan Sumption brings to a conclusion his reflections on “the decline of politics and the rise of law to fill the void”.  The lecture encourages us to resist calls for a written constitution, calls which, Sumption says, “mark the extreme point” of “our persistent habit of looking for legal solutions to what are really political problems”.  He makes the case instead for the merits of our historic constitution and for efforts to shore up the political foundations of our democracy.

Sumption notes that a written constitution would almost certainly expand the constitutional role of judges and that the point of every scheme for such has been to cut down legislative power.  He reiterates his scepticism “about claims that our system of government can be improved by injecting a larger legal element into it”.  I share the scepticism.  Of course, not all legal changes are made equal.  The devolutionary settlements, which the lecture goes on to praise, involve change to constitutional law, and expand the jurisdiction of the courts in important ways, but do not transform the constitutional balance between political and legal authorities.  The key question, as Sumption implies, is whether legal changes disable or dilute legislative power and parliamentary democracy.

The British constitution is centred on “the sovereignty of Parliament”, which Sumption rightly says “is the foundation of our democracy”.  Parliament is limited not by law but by conventions, which “derive their force from shared political sentiment”.  The government takes a central place within Parliament, which “is not just a legislative or deliberative body but an instrument of government”.  This scheme is very different to the constitutions of other states (New Zealand aside), but Sumption cautions the need to understand how it arose before looking for alternatives.  The distinctiveness of our constitution, he says, is no vice as it is a result of our unique history.  “For more than three centuries”, Britain “has been fortunate, or perhaps unfortunate, in having experienced none of the catastrophes that have called for new beginnings elsewhere.” And in practice, the political constitution has proved its worth, enabling “the British state to adapt to major changes in our national life which would have overwhelmed much more formal arrangements”.  He takes devolution as his main example, contrasting the UK’s capacity to accommodate Scottish and Welsh nationalism with Spain’s difficulty with Catalan nationalism, a difficulty compounded by the rigidity of the Spanish constitution.

I agree that our constitution has proved its worth over time, enabling major political changes while maintaining continuity with our political and legal history.  The openness of the Westminster constitution to radical political change is a virtue.  This radical capacity is subject to the self-tempering discipline that today’s majority may be tomorrow’s minority: long-term, stable change requires widespread public support.  Responsible government and parliamentary democracy are oriented towards the common good and make self-government possible.  They form part of a shared constitutional tradition and their political foundation is the joint commitment of the people of the United Kingdom to be governed by way of these arrangements, which unite them in common action.  The devolutionary settlements were introduced and have been extended in this way.  The risk of the experiment, which Sumption perhaps should have noted (but see his outstanding lecture “The Disunited Kingdom”), is that devolution may end up eroding the common feeling that supports the constitution.  That is, the United Kingdom may cease to be a single (if complex) political community.

Sumption’s intention is to persuade his audience “that we ought to be looking at more fundamental causes of the current diseases of our body politic than the peculiarities of our constitution.”  Recalling his second lecture, Sumption argues that the real problem is public disengagement with politics, a phenomenon evident in declining party membership, falling electoral turnout, and widely shared contempt for politicians.  The phenomenon is seen across the West and its causes, Sumption argues, “are inherent in the democratic process itself”.  Echoing his first lecture, he notes that democracy generates expectations that are inevitably disappointed, undermining public confidence, a dynamic which is especially pronounced in hard times, when growth falters and inequality rises.  Relatedly, “the perceived remoteness of politicians” is a problem, yet representative politics inevitably produces a political class, distinguished by ambition, zeal and knowledge.  Modern ideas of representation, Sumption says, require representatives not just to act for the people but to be like them, which is always unlikely.  And in the UK, the rejection of political elites has had a particularly significant consequence, which is to surrender political parties to extremists, making parties less capable of, or even interested in, compromise and responsible government.

Across the West, Sumption argues, political community is under strain and democracy has become ever less stable.  “The United States has for the moment ceased to be a political community, because neither side of the major political divide respects the legitimacy of policy positions that they disagree with.”  The same, he says, is true in Britain in relation to Brexit.  This is an overstatement, it seems to me, but it is true that democracy requires us to recognise one another as fellow citizens, to jointly seek our common good, and to accept the legitimacy of decisions we make together.  Representative politics requires political elites, but representation badly misfires not only when the masses have contempt for elites but also when elites disparage or disengage from the masses.  In a powerful lecture earlier this year, Richard Tuck noted that the sociological foundations for democracy in the past included industrialisation, where national prosperity required mass action, and the age of citizen armies, where national defence required shared military service.  Democracy is in trouble when elites and masses no longer understand themselves to share a common good, including when elites begin to identify more closely with a transnational or supranational community than with their own.

Having reviewed “our current problems of political legitimacy”, Sumption concludes that adopting a written constitution would “not make any difference”.  For all it would do would be to shift “power from an elective and removable aristocracy of knowledge, to a corps of judges which is just as remote, less representative, and neither elective nor removable.” This is an understatement.  Parliamentarians may be remote, but they are nothing like as remote as senior judges.  They are exposed to public criticism and opinion in a way from which judges are, rightly, largely insulated.  Investing judges with responsibility for political choice would sharply worsen the problem of political legitimacy.  It would also compromise the judicial capacity to contribute to the rule of law and would institute a mode of government that is not well-placed to secure the common good.

Rather than toying with a written constitution, Sumption encourages his audience to consider electoral reform, which would open the space for minor parties and force the main parties to broaden their appeal beyond a narrow base.  The site for compromise would thus be between parties rather than within them, which might mean weaker, less stable government.  But, Sumption reasons, this would “be a price worth paying if it boosted public engagement with politics” and enabled compromise to be forged.  Electoral reform is certainly worth considering – New Zealand’s abandonment of first past the post in the 1990s seems broadly successful, even if not without its cost in terms of transparency and responsibility.  And one might consider more particular reform of political parties, limiting the risk, on display in recent years, that the membership outside Parliament will foist a leader on the parliamentary caucus who then lacks the confidence of his or her colleagues.

The lecture concludes by prophesying that democracy will not end with a bang, but will simply fade away, with our “institutions imperceptibly drained of everything that once made them democratic.”  It is a chilling warning and a fitting end to the series but it does invite some wider thoughts about these Reith lectures.  Sumption often assumes that law has risen to fill a void left by the decline of politics.  But the relationship between the two is dynamic, as these lectures in part confirm.  The rise of law, itself fuelled by the hostility of many lawyers towards parliamentary democracy, serves to oust politics and partly causes its decline.  The adoption of supra-national legal restraints, enforceable by domestic and European judges, is the extreme case and clearly weakens national democracy (see further Peter Mair and Helen Thompson).  The analogous trend in domestic courts is also important, even if political authorities strictly have a greater capacity to resist judicial usurpation at home.

The Reith lectures argue that turning to the law will not solve our problems of political legitimacy.  This is a point rightly made but it risks understating, as I say, the contribution that “law’s expanding empire” has made to those problems.  It may also at times take for granted a shared commitment to democratic legitimacy, whereas in fact it is the thinness of elite commitment to political legitimacy that is a main reason to fear for democracy’s future.  The calls for a written constitution, or for supra-national law and adjudication, or for domestic litigation to discipline our political authorities – these may not be misguided attempts to shore up democracy’s foundations, but rather attempts to tie an unruly people down.  Sumption is, as I have said, no radical democrat; his call for greater public engagement in politics is limited by his choice to frame representative politics as a restraint on popular majorities.  But he rightly sees, I suggest, that a political strategy of demobilising the people, of relying on law to restrain politics, is not only unjust but also unstable and hence imprudent.

Richard Ekins is Associate Professor, University of Oxford, Head of Policy Exchange’s Judicial Power Project, and editor (with N. W. Barber and P. Yowell) of Lord Sumption and the Limits of the Law (Hart Publishing, Oxford, 2016).

(Suggested citations: R. Ekins, ‘Reflections on Democracy’s Foundations’, U.K. Const. Blog (19th Jun. 2019) (available at https://ukconstitutionallaw.org/))

Read More