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 LORD SUMPTION AND THE LIMITS OF THE LAW

In Lord Sumption and the Limits of the Law, leading public law scholars reflect on
the nature and limits of the judicial role, and its implications for human rights
protection and democracy. The starting point for this reflection is Lord Sump-
tion’s lecture, ‘The Limits of the Law’, and, spurred on by this, the contributors
discuss questions including the scope and legitimacy of judicial law-making, the
interpretation of the European Convention on Human Rights, and the continu-
ing significance and legitimacy, or otherwise, of the European Court of Human
Rights. Lord Sumption ends the volume with a substantial chapter engaging with
the responses to his lecture.
ii
Lord Sumption and the Limits
of the Law

Edited by
NW Barber
Richard Ekins
and
Paul Yowell

OXFORD AND PORTLAND, OREGON

2016
 Published in the United Kingdom by Hart Publishing Ltd
16C Worcester Place, Oxford, OX1 2JW
Telephone: +44 (0)1865 517530
Fax: +44 (0)1865 510710
E-mail: [email protected]
Website: http://www.hartpub.co.uk
Published in North America (US and Canada) by
Hart Publishing
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Website: http://www.isbs.com
© The editors 2016
The editors have asserted their right under the Copyright,
Designs and Patents Act 1988, to be identified as the authors of this work.
All rights reserved. No part of this publication may be reproduced, stored in
a retrieval system, or transmitted, in any form or by any means, without
the prior permission of Hart Publishing, or as expressly permitted by
law or under the terms agreed with the appropriate reprographic
rights organisation. Enquiries concerning reproduction which
may not be covered by the above should be addressed to
Hart Publishing Ltd at the address above.
British Library Cataloguing in Publication Data
Data Available

Library of Congress Cataloging-in-Publication Data

Names: Barber, N. W. (Nicholas William), editor. | Ekins, Richard, editor. |
Yowell, Paul, 1969–, editor. | Sumption, Jonathan.
Title: Lord Sumption and the Limits of the law / edited by Nicholas Barber,
Richard Ekins and Paul Yowell.
Description: Oxford ; Portland, Oregon : Hart Publishing Ltd, 2016. | Series: Hart studies
in constitutional law ; volume 5 | “This volume arises out of a conference held in
the University of Oxford in October 2014.” | Includes full text of lecture “The limits
of the law”, originally presented as the 27th Sultan Azlan Shah Lecture, Kuala Lumpur,
Nov. 20, 2013. | Includes bibliographical references and index.
Identifiers: LCCN 2015049489 (print) | LCCN 2015049635 (ebook) | ISBN 9781849466943
(hardback : alk. paper) | ISBN 9781509902170 (Epub)
Subjects: LCSH: Sumption, Jonathan. Limits of the law—Congresses. | Judge-made
law—Congresses. | Judicial power—Congresses. | Political questions and judicial
power—Congresses. | European Court of Human Rights—Congresses.
Classification: LCC K574.A6 L67 2016 (print) | LCC K574.A6 (ebook) | DDC 341.4/8—dc23
LC record available at http://lccn.loc.gov/2015049489

ISBN: 978-1-50990-216-3
Typeset by Compuscript Ltd, Shannon
 A Note on the Cover
‘Fashion before ease; or, a good constitution sacrificed for a fantastic form’
By James Gillray, 1793.

The print shows an unhappy Britannia being laced into a corset by Thomas Paine.
Paine was the author of, amongst other books, The Rights of Man—and the title
of this volume can be seen on the measuring tap, which dangles from his pocket
next to his tailor’s shears. The Rights of Man, published a couple of years before
Gillray’s print, called for the introduction of a written constitution for the United
Kingdom, the recognition that natural rights constrain the state, and a rejec-
tion of the aristocratic structuring of society. Paine’s intellectual rival, Edmund
Burke, would have sympathised with the manner in which Gillray has chosen to
depict the scene. For Burke, the British state was an organic entity, one that had
developed over time, intertwined with the community of which it was a part. The
rationalist attempt to draw up a set of rights that limited the state was bound to
create discomfort: the protection of liberties is a function of a well-formed state,
and not something that can be imposed on it from outside.
vi
 Foreword: Beyond the Limits
TIMOTHY ENDICOTT

There is—as the last sentence of Lord Sumption’s lecture1 will remind you—no
law of nature that things are going to get better in a political community. But
things have undoubtedly got better in our constitutional order. In the youth of
King Richard II, the Lords Appellant used the appearances of law to take over the
government of the country, bringing proceedings in the High Court of Parliament
against the King’s councilors and against his judges. The charges were for treason
in the policies that they had pursued and for treason in exercising undue influ-
ence over the King. There was no certainty as to what counted as a crime and no
established authority for the process. The process included asking the Mayor and
aldermen of London whether one of the defendants was guilty, and executing him
when they prevaricated.2
Law has always captivated the English political imagination. Over many centu-
ries, judicial process has offered an alluring alternative to other processes of gov-
ernance. You can see that allure in legalistic abuses and also in the most intelligent
steps toward the rule of law. Both involve rule by judges.
In the seventeenth century, Sir Edward Coke asserted three English constitu-
tional fundamentals: the independence of judges, the peculiar preeminence of the
judges in determining the content of the common law, and the jurisdiction of the
judges to control the exercise of discretionary power by other servants of the King.
‘Discretion’, said Sir Edward, ‘is a science of understanding, to discern between
falsity and truth, between wrong and right, between shadows and substance,
between equity and colourable glosses and pretences, and not to do according to
their men’s will and private affections.’3 He imposed the rule of law on the will of
other servants of the Crown; he subjected the country to the will of the judges.
Lord Sumption points out that people have expectations of the law today that
they did not have in Coke’s time, or some 60 years ago when British lawyers and
politicians participated in the drafting of the European Convention on Human
Rights. It is true, as he says, that: ‘Popular expectations of law are by historical
standards exceptionally high.’4 Yet high and unrealistic expectations of law are an
old English tradition. Already by the fourteenth century, in staging a coup d’etat,

1 ‘The Limits of Law’, 27th Azlan Shah Lecture, Kuala Lumpur, 20 November 2013.
2 Oxford Dictionary of National Biography (Oxford, Oxford University Press 2004–14), s.v. ‘Lords
appellant’.
3 Rooke v Withers (1597) 77 ER 209, 210.
4 See n 1 above.
viii Foreword

the preferred way was under the guise of legal proceedings. And already by the sev-
enteenth century, Sir Edward Coke was regulating the discretions of other public
servants by claiming a massively important discretion for the judges. Coke’s own
maxim applies to that discretion: the judges are not to exercise it according to their
men’s and women’s will and private affections, but they alone have jurisdiction to
determine what would count as doing so.
The British lawyers and politicians who committed the UK to the Conven-
tion presumably thought that they were assuring, for the future of a continent,
rights that had long been secure and uncontroversial in the UK. They presumably
did not think that they were engineering the shift that Lord Sumption outlines
towards governance of the UK by judges. Along with their responsibility for con-
trolling other public authorities, the Strasbourg judges have incurred a correlative
responsibility (which no one thought of at the time) to control themselves in their
own use of public power. The rule of law imposes that same responsibility on UK
judges exercising their authority under the Human Rights Act: not only to control
the use of public power by other authorities, but also to control themselves and to
use their power with humility.
The European Convention provides a salient and, now, politically contentious
field for working out how a community is to be governed, and it forms a focus for
much of the work in this volume. I think it is important to put that field of issues
in the context of Lord Sumption’s discussion of the Witham case.5 On the proper
effects of the European Convention, there is a wide and notorious diversity of
opinions. But among English lawyers and judges, there is something very much
like a consensus, or orthodoxy, that judges ought to use the common law ‘principle
of legality’ to control governmental decisions over fees for access to the courts. So,
in Witham, the Court of Appeal held that by increasing the cost of issuing a writ,
the Lord Chancellor had unlawfully denied a constitutional right of access to the
courts, which could only lawfully be denied by express legislation.6
The decision in Witham is part of a pattern of direct judicial control of the cost
of litigation. The courts will not require claimants to give security for costs when
they bring speculative claims for judicial review against public authorities.7 In fact,
the courts will make ‘protective costs orders’ to assure such claimants that they
will not be faced with the ordinary order to pay the defendant’s costs if they lose.
The judges have done this even in cases that patently have no prospect of success.8
These judicial innovations establish public subsidies for litigation. Lord Sumption
says that ‘the real question’ in such cases concerns ‘the relative importance of doing

5 R v Lord Chancellor ex p Witham [1998] QB 575.

6 ibid 586. The fee for issuing a writ where no monetary limit was specified became £500, and the
new regulations repealed a provision that had allowed litigants in receipt of income support to issue a
writ without a fee.
7 See, eg, R (Plantagenet Alliance) v Secretary of State for Justice [2013] EWHC 3164.
8 The first such reported case was R v The Prime Minister ex p Campaign for Nuclear Disarmament

[2002] EWHC 2712. Perhaps the Plantagenet Alliance case is another example, although the judge who
gave permission to seek judicial review thought that there was some prospect of success; the Divisional
Court that heard the claim for judicial review disagreed.
 Foreword ix

so, relative, that is, to other possible uses of the money’.9 He suggests that by treat-
ing access to the courts as a right at common law, the judges are imposing costs
on a government that might legitimately have different spending priorities. In his
challenge to the orthodoxy over judicial governance of access to the courts, Lord
Sumption puts the debates over the European Convention on Human Rights in a
new light: at every point, those debates concern not only the content of the Con-
vention rights, but also the form of governance that can best respect the interests
protected by the rights, and best reconicle them with other interests.
I am glad that the editors of this volume organised the discussion in the Uni-
versity of Oxford. During the Hundred Years’ War, the University had not fully
attained its potential, which is to put people in the predicament of defending
views that they consider to be obviously true, in the face of the arguments of oth-
ers who consider the contrary views to be obviously true. The University has still
not fully attained that potential. But the colloquium on Lord Sumption’s lecture
was a step forward. I congratulate the editors on creating such an opportunity
for the participants to experience the freedom of debate in the University and for
publishing the conversation in this volume.

9 See n 1 above.
x
 Acknowledgements
This volume arises out of a conference held by the Programme for the Foundations
of Law and Constitutional Government in Oxford in October 2014. The Faculty of
Law, St John’s College and Trinity College provided valuable help with the logis-
tical arrangements. We thank the participants in the workshop for stimulating
questions and comments, our colleagues who chaired the panels, and Timothy
Endicott for his thoughtful remarks to open the proceedings. We are especially
grateful to the contributors to this volume and to Lord Sumption for giving gen-
erously of their time and for their patience with the editorial process. Mikolaj
Barczentewicz and Ewan Smith provided editorial assistance in the preparation of
the text of the papers for publication, for which we are much obliged. Finally, we
owe a special debt of gratitude to Mr Graham Child for providing the funding that
made this project possible.

Nick Barber
Richard Ekins
Paul Yowell
xii
 Table of Contents
A Note on the Cover����������������������������������������������������������������������������������������������������v
Foreword: Beyond the Limits by Timothy Endicott�������������������������������������������������� vii
Acknowledgements���������������������������������������������������������������������������������������������������� xi
List of Contributors���������������������������������������������������������������������������������������������������xv

1. Introduction������������������������������������������������������������������������������������������������������1
NW Barber, Richard Ekins and Paul Yowell
2. The Limits of Law�������������������������������������������������������������������������������������������15
Lord Sumption
3. Sumption’s Assumptions��������������������������������������������������������������������������������27
Martin Loughlin
4. Living Trees or Deadwood: The Interpretive
Challenge of the European Convention on Human Rights��������������������������45
Sandra Fredman
5. Judges, Interpretation and Self-Government������������������������������������������������67
Lord Hoffmann
6. Judicial Law-Making and the ‘Living’ Instrumentalisation
of the ECHR����������������������������������������������������������������������������������������������������73
John Finnis
7. The Role of Courts in the Joint Enterprise of Governing���������������������������121
Aileen Kavanagh
8. Three Wrong Turns in Lord Sumption’s Conception
of Law and Democracy���������������������������������������������������������������������������������141
Jeff King
9. The Human Rights Act and ‘Coordinate Construction’:
Towards a ‘Parliament Square’ Axis for Human Rights?�����������������������������153
Carol Harlow
10. Limits of Law: Reflections from Private and Public Law����������������������������175
Paul Craig
xiv Table of Contents

11. The Limits of Lord Sumption: Limited Legal Constitutionalism

and the Political Form of the ECHR������������������������������������������������������������193
Richard Bellamy
12. A Response����������������������������������������������������������������������������������������������������213
Lord Sumption

Index�����������������������������������������������������������������������������������������������������������������������225
 List of Contributors
Richard Bellamy is Professor of Political Science at University College London
and Director of the Max Weber Programme at the European University Institute
Paul Craig is Professor of English Law in the University of Oxford
John Finnis is Professor Emeritus in Law and Legal Philosophy in the University
of Oxford and Biolchini Family Professor of Law in Notre Dame University
Sandra Fredman is Rhodes Professor of the Laws of the British Commonwealth
and the USA in the University of Oxford
Carol Harlow is Professor Emeritus at the London School of Economics
Lord Hoffmann was a Lord of Appeal in Ordinary (Law Lord) from 1995 to 2009
Aileen Kavanagh is Associate Professor of Law in the University of Oxford
Jeff King is Senior Lecturer in Law at University College London
Martin Loughlin is Professor of Public Law at the London School of Economics
Lord Sumption is a Justice of the Supreme Court of the United Kingdom
xvi
 1
Introduction
NW BARBER, RICHARD EKINS AND PAUL YOWELL

T
HIS IS A book about the nature and limits of the judicial role. It ­examines
the proper constitutional role of the judge by considering questions about
relative institutional competence, the nature of law-making and legal
reasoning in general, and rights adjudication in particular. These are questions
that engage core constitutional principles, including the rule of law, parliamen-
tary democracy and the separation of powers. All of these are matters of endur-
ing scholarly and public interest. They are of particular importance in evaluating
the exercise of judicial responsibilities under the Human Rights Act 1998 and the
impact of the European Convention on Human Rights within the UK. Debates
about the merits of that Act and the terms of the UK’s continuing membership of
the Convention are in large part debates about the powers that judges—British or
European—ought to enjoy in our legal order.
The public conversation about the nature and limits of judicial power has long
been enriched by the extra-judicial reflections of our leading judges. This book is
framed around one such contribution, Lord Sumption’s 2013 lecture, ‘The Limits
of Law’.1 The lecture takes its place in a long tradition in which commitment to
self-government by way of a sovereign Parliament has been shared by people who
otherwise have a wide range of political views. Lord Sumption’s lecture restates
some central elements in this familiar understanding of fundamental principle,
elucidating them from the distinctive perspective of a sitting judge and in relation
to the latest developments in our constitutional law. With a view to exploring fur-
ther the shape and implications of the argument, we invited nine leading scholars
to reflect on Lord Sumption’s lecture, in dialogue with him, at a conference held
in Oxford in October 2014. This volume captures that conversation, opening with
Lord Sumption’s lecture, which is presented here in a format close to its original
text, continuing through nine scholarly reflections and responses, and concluding
with a reply from Lord Sumption.

1 Lord Sumption, ‘The Limits of Law’, 27th Sultan Azlan Shah Lecture, Kuala Lumpur,

20 November 2013.
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