If recent press reports are to be believed, the Government is considering giving Jonathan Sumption, the former Supreme Court judge, a leading role in its upcoming constitutional review.

According to the Financial Times, the model will be roughly as follows. A group of ministers – reportedly Michael Gove, Suella Braverman, and Robert Buckland – will draw up a set of “essay questions”. Then an “independent individual”, possibly Lord Sumption, will head up the commission which will produce the answers.

This might seem like a sensible approach. But there are grounds to be sceptical about both the appointment (if the reports are accurate) and the model.

Let us first consider the choice of Lord Sumption. On the face of it, it makes sense. This after all is the retired Supreme Court judge who delivered a set of Reith Lectures (later published as a book) on ‘Law’s expanding empire’, in which he took aim at the apparently inexorable advance of judicial power, and judges’ growing propensity towards heavy-handed interventions in sensitive political debates.

These lectures greatly aggravated the public law lobby and made some cogent points about the evolving role of the judiciary in British constitutional discourse.

But anyone who has kept paying attention to Sumption will know that he appears very reluctant to appear on the side of a government which is directly taking on the hugely powerful, even hegemonic, legal establishment. 

The benefit to judges, lawyers, and public law academics if democratic discourse becomes more legalistic and judicialised is obvious. The more areas of policy are shifted from the political arena to that of the courts and enshrined rights, the more this expert caste get to squeeze the public out of the process of governing in favour of the benign supervision of a Whiggish elite.

Sumption’s contradictory positions on these questions first became evident with his quite brazen U-turn on the legality of Boris Johnson’s decision to prorogue Parliament. Having offered up the “legal case for” the Government’s decision to prorogue in the Times on August 29th, he returned to the pages of the same paper less than a month later to say that the Prime Minister’s defeat was the ‘natural result of constitutional vandalism’.

He also said on Newsnight that the Supreme Court would be well advised to follow the High Court in refusing to strike down the prorogation. Sumption might perhaps reflect on the wisdom of his current arguments in support of the Supreme Court’s astonishing decision, the reasoning behind which has been so comprehensively dismantled by Professor Martin Loughlin of the LSE.

Beyond the shamelessness of this swithering, it also suggests that Sumption’s position on judicial adventurism is, by their lights, much less sound than the Government may suppose. The process he so blithely describes as a “natural result” is that “conventions have hardened into law”. This is a straightforward case of judicial alchemy, not least because the Supreme Court only recently held in another case brought by the Scottish Government that conventions are inherently political and unenforceable. 

Sumption appears very reluctant to side with a government which is taking on the legal establishment

A court which ‘hardens’ a convention into a legally binding norm is not filling in gaps in the law, as judges often do perfectly reasonably, but initiating potentially momentous reforms from the bench. It is especially remarkable that an apparent sceptic of judicial power could be so blithely accepting of Miller II, which possesses several uniquely problematic features. 

These include the total disregard for the long-standing ‘high policy’ test, without so much as an explanation for why the Lord Chief Justice and the heads of both the Court of Appeal and the Queen’s Bench Division were wrong in law when they resoundingly rejected Miller’s claim in the High Court. There is also the incredible extension of the frustration principle and interference in parliamentary proceedings, which Robert Craig has explored elsewhere.

Judging by Lord Sumption’s recent interventions, this back-pedalling is only increasing in speed. In an article for last week’s Sunday Times (in which he once again asserts the Supreme Court’s rightness in the prorogation case) he actually goes so far as to suggest that, as the headline reads, “meddling by judges is a problem only they can fix”. This plays to the common law myth that judges, rather than Parliament, have the final word on matters of law.

In some areas, Sumption makes good points. The section highlighting the severe limitations of parliamentary hearings for judicial appointments, for example, is well-argued.

But he entirely ignores the very real role that Parliament can play in curbing judicial power, disguising it instead behind a straw man. He writes that Parliament could pass ‘an Act giving ministers unlimited powers if you phrased it clearly and brutally enough’, setting up a false dichotomy between this tyrannical absurdity and the status quo.

But this ignores a deeper truth behind the example, which is that Parliament’s authority could be channelled as powerfully to more precise, and thus less ridiculous and impossible, ends that would have the benefit of sending a clear message.

For example, Parliament could legislate to re-establish the ministerial discretionary veto in s 53 Freedom of Information Act after it was de facto abolished by the Supreme Court in R (Evans) v Attorney General (2015). This was the famous “black spider memos” case involving Prince Charles. Or it could legislate to strengthen so-called ‘ouster clauses’ when such clauses are eviscerated in cases such as ‘Privacy International’ or ‘Anisminic’. It could pass a law to the effect that prorogations shall henceforth be non-justiciable, perhaps even in the forthcoming Act repealing the Fixed-term Parliament Act. Parliamentary sovereignty is an awesome power, particularly when it coalesces with a large majority and an overwhelming mandate to strengthen the democratic elements of the constitution.  

(In his evidence to Parliament’s Public Administration and Constitutional Affairs Committee (Q84), Sumption nods his head to the idea of re-legislating more emphatically provisions struck down in the courts but added that “ultimately if judges are not prepared to respect the meaning of Acts of Parliament there is very little that can be done about it.” Not the language of a happy warrior in democracy’s cause.)

Of course, Sumption might find willing collaborators in his attempt to downplay the scope of Parliament’s power to address the problem of over-mighty courts. As I have written elsewhere, many of the foundations of the current situation were laid by successive governments passing power away from the House of Commons, not just to judges but to regulators and quangos. This has often been done in the name of making Parliament more ‘modern’, and more specifically in the eternally-popular cause of cutting its sitting hours.

The result is that more and more of the regulations by which we live are actually created by unelected bodies distilling specific rules from very broad legislative sources. This is most obvious when it is the Supreme Court applying the Human Rights Act, and there’s a reason that legislation is intermittently in the Tories’ sights – but that’s really just the tip of the iceberg.

Johnson’s apparent intention to farm out his constitutional overhaul to an independent commission smacks of the same thinking. What is the virtue of having it led by an ‘independent individual’? Since the Cabinet will be setting political questions, why this bizarre quest for allegedly ‘apolitical‘ answers?

It could even undermine the public case for the review. If the problem is judges interfering too heavily in decisions which ought to be made by elected politicians, how can the answer lie in an apolitical commission staffed by prominent, un-elected lawyers whose chief commendation is their ‘independence’ from political authority?

Gove et al should avail themselves of Sumption’s perspective and expertise, by all means, but they shouldn’t relinquish control over what is rightly, and inevitably a political process. After all, such is the balance of political opinion in the class of people, from whom the personnel of such quangos and commissions are usually drawn, that the Conservatives’ decision to play along with the modern fetish for ‘independence’ is not only democratically problematic but puts the right at a serious structural disadvantage in British politics. 

One does not need a crystal ball to see how Sumption’s appointment could blow up in the Government’s face. One need only, once again, to pay attention to what he is actually saying in public. At a recent meeting hosted by the Institute for Government he offered his perspective on what the commission should be looking at: the monarchy, and proportional representation. Not, one notes, the courts.

This ought to serve as a sort of anti-credential when it comes to selecting the leading light of Johnson’s flagship constitutional review. If he isn’t careful, the Prime Minister may find himself ambushed, with Sumption ‘doing a Beveridge’ and re-interpreting his brief to offer up the usual shopping list of un-Conservative (not to mention un-conservative) proposals favoured by the tiresome and relentless constitutional reform lobby. Wouldn’t that be embarrassing?