Richard North, 31/05/2019  
 


Courtesy of one of my readers, my attention has been drawn to the very recent series of Reith lectures by Jonathan Sumption, judge, author and medieval historian, sworn in as a Justice of the Supreme Court on 11 January 2012.

The overall title of the series is "Law and the decline of politics" and only two of the lectures have been delivered so far, both with transcripts. Of particular interest is the second lecture, entitled "In praise of politics", specifically because Sumption takes a brief look at Brexit.

"Europe", he says, "has now become the defining issue which determines party allegiance for much of the electorate. As a result, we have seen both major national parties which previously supported membership of the European Union adjust their policy positions to the new reality".

"In a sense", he tells us, "that is what parties are for, it’s what they have always done, but there remains a large body of opinion, in both major national parties, which are strongly opposed to Brexit".

And from there he adds, "One would therefore ordinarily expect the political process to produce a compromise not entirely to the liking of either camp but just about acceptable to both. Now that may yet happen but it has proved exceptionally difficult". In Sumption's view, the "fundamental reason" for this is because of "the referendum". A referendum, he says, "is a device for bypassing the ordinary political process".

Alarmingly, in the view of this learned judge, this referendum "takes decision-making out of the hands of politicians, whose interest is generally to accommodate the widest possible range of opinion, and places it in the hands of individual electors who have no reason to consider any opinion but their own".

He then asserts: "The very object of a referendum is to inhibit an independent assessment of the national interest by professional politicians, which is why it might be thought rather absurd to criticise them for failing to do so".

And so he concludes: "A referendum obstructs compromise by producing a result in which 52 per cent of voters feel entitled to speak for the whole nation and 48 per cent don't matter at all".

Taking this in the context of the whole speech, and with having listened to the first, there is an interesting argument here, based on a number of quite disturbing assertions.

Picking out one of those, I don't know whether to be amused or mortified by his deference to "professional politicians", which appears to afford them gravitas and a status which they hardly seem to deserve. Earlier, he tells us that these professional politicians "can fairly be expected to bring to their work a more reflective approach, a broader outlook and a lot more information than their electors".

Thus, these obviously admirable persons are the ones who undertake an "independent assessment of the national interest", while the venal individuals voting in a referendum " have no reason to consider any opinion but their own". And it's fairly evident which scenario Sumption prefers.

However, in my view, what we have here is an extraordinary example of an intellectual disconnect. Still earlier he refers to the relationship between people and the state, arguing that we obey it mainly because "we acknowledge its legitimacy".

This is, Sumption says, "a collective instinct that we owe it to each other to accept the authority of our institutions, even when we don't like what they are doing". From there, he asserts:
It depends on an unspoken sense that we are in it together. It's the result of common historical attachments, of language, place and culture. In short, of collective identity. But even in an age when collective identities are under strain, legitimacy is still the basis of all consent for in spite of its immense power, the modern State depends, on a large measure, of tacit consent.
With this I would not disagree but that would seem to make Sumption's distaste for referendums rather perverse. By any objective measure, joining the EEC in 1972 involved a fundamental change in the relationship between the citizen and the state, imposing another tier of government – a supreme government in the areas of its competence - which was beyond the reach of the democratic system.

We can argue the merits of this until the cows come home, but the unarguable fact is that this change was made without the prior consent of the British people. And while, there was the ex post facto exercise of the 1975 referendum, not only did this not confer informed consent, it did not cover the additional European treaties which were agreed between then and now.

Taking the very point that Sumption makes, therefore, when our membership of the EU lacks consent – either tacit or explicit – it lacks legitimacy. And that consent is not a matter for "professional politicians". It can only be conferred by the people themselves. And how can this be expressed, other than through the medium of a referendum?

As to parliament's refusal – so far – to ratify the Withdrawal Agreement, and thereby formally take us out of the EU, Sumption believes that this is an example of politics, "in some small degree, reasserting itself". Parliament, he says, "has forced compromise on those who feel that the referendum entitles them to absolute outcomes".

In fact, that is a misreading of the situation. All parliament has shown is that it is chronically incapable of making a decision on Brexit. And indecision is not "compromise". It is indecision.

But what we are actually hearing from this judge/historian is the voice of the authoritarian establishment, a man who automatically assumes that his "professional politicians" can fairly be expected to bring to their work "a lot more information than their electors".

This is a man in his own bubble, oblivious to our own gradual realisation that the MP collective is the repository of the most staggering ignorance, limited by tribal politics and loyalties, and quite incapable of taking a "reflective approach" or a "broader outlook". In Sumption's little world, there is no such thing as the citizen expert, a concept he would doubtless regard as somewhat vulgar.

But then, who are we plebs to argue? While we have no reason to consider any opinion but our own, he is a judge. And, in his words, "Judges are intelligent, reflective and articulate people". Not only that, they are "intellectually honest" – although only "by and large", but they are "used to thinking seriously about problems which have no easy answer and contrary to familiar clichés, they know a great deal about the world".

This could be regarded as an elitist view, and I doubt whether Sumption would disagree with that. He is happy with the concept of a ruling elite – this, after all, these include his "professional politicians", the guardians of the collective national interests "which extend over a longer time scale and a wider geographical range than are ever likely to be reflected in the public opinion of the moment".

But whether or not it is elitist, it certainly reflects the arrogance of a class which self-evidently feels it is entitled to rule. With reference to Brexit, he implies that this is an instance where citizens are sacrificing the true interests of the country to short term considerations, unthinking impulses and sectional interests.

He cites the 18th century political philosopher David Hume who, we are told, first pointed out what he called the "incurable narrowness of soul that makes people prefer the immediate to the remote". If we are to avoid the same "narrowness of soul", Sumption says, "we have to take a view of the national interest which transcends snapshots of the current state of electoral opinion".

The inexorable conclusion to which he then leads us is that we should defer to these magnificent, all-knowing "professional politicians" who are taking the longer view, as opposed to us mere plebs and our "incurable narrowness of soul".

Sumption, however, needs to read his own speech. "Even in a totalitarian State", he warns, "civil government breaks down at the point where tacit consent fails and ideology cannot fill the gap". He then continues:
If that was true of the party dictatorships of Eastern Europe with their intimidating apparatus of social control, then how much more is it true of a relatively free society such as ours?
Says Sumption:
The legitimacy of State action in a democracy depends on a general acceptance of its decision-making processes, not necessarily of the decisions themselves but of the method of making them. A free society comprises countless individuals and groups with conflicting opinions and interests. The first task of any political system is to accommodate these differences so that people can live together in a single community without the systematic application of force.
He might reflect that the referendum which he so detests has unequivocally withdrawn consent to our membership of the European Union and its decision-making processes. No amount of "professional politicians" can change this. Their job is to restore legitimacy to the system, without which there is only "the systematic application of force".

If parliament can't do its job, as Pete observes, we're in for a pretty torrid time. The "systematic application of force" may be the only thing they have left. And we all know where that leads.






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