Democracies, Jonathan Sumption warns, fail from within. Elections, politicians and supposedly independent courts may appear to survive, “but the content just leaks slowly out of the bottle, leaving nothing behind but the label”.
The former judge has had much to say about democracy since his retirement from the Supreme Court in 2018. In between completing his five-volume history of the Hundred Years War, he has toured the world’s universities delivering lectures on politics, law and the often tense relationship between the two. In 2019 he delivered the BBC Reith Lectures on how law was taking over the political realm. A dozen of his subsequent speeches have been published as The Challenges of Democracy: And the Rule of Law. The first starts by quoting John Adams from 1814: “There never was a democracy yet that did not commit suicide.”
When I met Sumption at his home in Greenwich, he was in brighter spirits than the tone of his essays suggests. The room he led me into was a cross between a Victorian Oxbridge professor’s study and a National Trust property: floor-to-ceiling bookshelves, a marble bust of an unnamed but rather dashing French aristocrat, an oil painting depicting a scene from Ovid that may or may not be an original Angelica Kauffman. (“The best lawyers were classicists,” he said, although clearly medieval historians can be successful too.) An excitable retriever called Flora (a name picked out of Kobbe’s Complete Opera Book) tried to join us but was shut out. Sumption settled in front of a fire and cheerfully dove into the death of democracy.
“Democracy provokes expectations which are very difficult, in some cases impossible, for the state to satisfy,” he said. “Politicians encourage this by pretending to do more than they’re actually capable of. The result is that when the expectations are defeated, as they inevitably are, people turn to other ways than democratic interchange to make their views felt.”
Sometimes that means people bypassing elected representatives to seek recourse from the courts or direct activism, from bringing cities to a standstill to disrupting speaking events by those with views deemed offensive or unacceptable. And sometimes it means the rise of populist strongmen – Donald Trump, and that “lesser monster, Boris Johnson” – who exploit the electorate’s frustration with politics to ride roughshod over long-standing democratic norms and institutions.
Sumption never fitted into any political box. In the 1970s he worked with the Conservative titan Keith Joseph; he has said he supported Labour the time, and later voted for Tony Blair. He is a scathing critic of Brexit, both the decision itself and the use of a binary referendum when “the answer is bound to depend on what is going to replace our relationship with the EU. That wasn’t on the ballot paper and it’s been the source of enormous discord ever since.”
Some of the most damning essays in the book, however, take aim at international tribunals and human rights treaties, especially that bugbear of Brexiteers, the European Court of Human Rights (ECHR). “Is this consistent? Yes!” he laughed. Surrendering a degree of national sovereignty to an international body in order to gain advantages, such as friction-free trade with 500 million consumers in the EU single market, is justified. But we “do not get any advantage from the European Convention on Human Rights that we couldn’t equally have without a treaty just by domestic legislation”, he says. The rights protected by the ECHR are important – Sumption would want them enshrined in a British bill of rights. But the court in Strasbourg, he complains, does not merely rule on existing law, but, with its ever-expanding interpretations, essentially legislates (“What they do is they make up the law as they go along”).
The struggle between domestic politics and international law has found a new battleground in recent weeks, with the continuing row over the government’s proposed handover of the Chagos Islands to Mauritius (and the cost to the British taxpayer of leasing back Diego Garcia, the island that houses a US-UK airbase). This policy has been championed by Richard Hermer, the human rights barrister elevated to the Lords by Keir Starmer to serve as his attorney general. The issue hinges on a 2019 advisory opinion from the International Court of Justice (under the auspices of the UN): by refusing to cede the territory to Mauritius, Hermer and others have argued, the UK could breach international law and put the security of the airbase in jeopardy. What does Sumption make of it all?
“I think this is ridiculous,” he said of the court’s ruling, based on the premise that colonial territories could not be divided. “It’s an invented principle with absolutely no basis.” Were he asked to advise the government, “My advice would be to preserve the status quo.”
While he stressed that the ICJ is “a very distinguished court”, judges do sometimes make mistakes. “I do think it is new and undesirable to have an attorney general who appears to believe, judging by recent speeches, that international law is a superior form of law,” he said. “That is completely contrary to several centuries of British jurisprudence. And I think it’s wrong.”
Sumption was one of the most prominent critics of the Covid lockdowns. He faced significant backlash for comments in January 2021 that some lives were “less valuable”, and argued governments were misjudging the balance between security and liberty. We are only now starting to tally up the full economic and social costs, he says. But there is also a lesson about the expansion of the state and the public demand for governments to eliminate risk. “In my Reith Lectures I drew attention to a way in which the desire for security was augmenting potentially despotic powers of the state. I could not possibly have imagined that my concerns would be vindicated quite so soon.”
Sumption’s name has been in the news recently. He addressed the committee on the assisted dying bill in January to argue that the requirement for a high court judge to sign off applications was unnecessary, arguing it “infers a protection that is largely illusory and undoubtedly very time-consuming”. The bill’s sponsor Kim Leadbeater sparked a furious row when she announced on 10 February that she would indeed be dropping the requirement. As a Supreme Court justice, Sumption ruled on one of the landmark assisted dying cases. His position was that it was for parliament, not judges, to decide whether the change the law.
Now that he is retired and parliament is in the process of deciding just that, what is his view on the subject? The reason the question of whether a person should be permitted to end their own life is such an emotive one is because, he said, it’s a “direct conflict between two of our most fundamental moral values”. Over time, his position has evolved. He comes down “on a very fine balance” in favour of the proposed legislation, as long as it is strictly limited to the terminally ill. To explain why, he paraphrases the Roman philosopher Seneca: “You have to distinguish between measures that prolong life and measures that prologue death.”
But this is far from a blanket endorsement. “I get very fed up with people who think that the moral answer is obvious. Because they’re only asking themselves half of the relevant questions.” He paused. “The truth is that both sides in this debate are right.”
His house is round the corner from the National Maritime Museum. With time to kill before our interview, I wandered into a gallery dedicated to “the history of the transatlantic slave trade”, and reread his essay on “the New Roundheads”, which tears into attempts by academics and museum curators to “decolonise” the study of history. He never mentions the word to me, but there’s much in the book to please the global anti-woke brigade. As well as the broadside against lockdowns and his branding of efforts to rewrite history “a deadly combination of dogmatic intolerance and sanctimonious philistinism”, a chapter on free speech and cancel culture defends “allowing people to say things that other people regard as foolish, hurtful or untrue”.
Yet Sumption’s visceral takedown of Trumpism provides an intriguing foil to these views, and the book decries the disintegration of the US Supreme Court. “What is happening in America is profoundly sinister,” he told me, “and if continued for long enough would I think mark the destruction of American democracy.”
Trump epitomises Sumption’s warnings about the breakdown of democratic norms until all that is left is the label on the bottle. Sumption characterises the reported discussion about Greenland between the US president and the Danish prime minister as “the sort of conversation that Hitler had with the prime minister of Czechoslovakia in 1938”. “Nowhere in the world is the existence of cultural conventions restraining the exercise of power more important than in the States. And nowhere is it less obvious that these restraints still apply.” He says our parliamentary system, which rejected Boris Johnson and Liz Truss in quick succession, is somewhat more robust. Is he optimistic about our fate? “I have mood swings.” Jonathan Sumption hopes his book will draw attention to the ways in which democracies are under attack. And maybe encourage enough people to prove John Adams wrong.
[See also: Euan Blair: “Education does not only happen on campus”]
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This article appears in the 19 Feb 2025 issue of the New Statesman, Europe Alone