First Thursday, October 2018

Summary First Thursday 4.10.2018 

The Times of October 4th 2018 carried an article: “Courts should not be deciding big policy issues, top judge rules”, quoting Lord Sumption, who is to give next year’s Reith Lectures: Law and the Decline of Politics. His argument is that the 1998 Human Rights Act has handed over to judges decisions that should rightly belong to Parliament. Examples he gives in the article include matters of assisted dying (such as the case of Tony Nicklinson, with “locked-in syndrome”), the rights of unmarried couples, divorce and abortion.

(A more recent example might be the Parliament debate on 24th October on the Northern Ireland Bill, in which a new clause was passed requiring the Secretary of State for Northern Ireland to issue guidance on the “incompatibility” of human rights legislation with the bans on abortion and same-sex marriage in Northern Ireland- those opposed to the new clause arguing that these were devolved matters which can only be decided by Stormont).

At its root, the question here is about the sovereignty of a democratic Parliament. Is Parliament absolutely sovereign, or is it limited in some way in its competence? Is it confined to matters of public policy, or can it define what is justice, what is right and wrong? In the Hebrew Scriptures the right to define right and wrong is reserved to God: the temptation for humans in Genesis 3:5 is to “become god”, to “know” (that is, to control and define) good and evil. In the story of Naboth’s Vineyard (1 Kings chapter 21) Jezebel taunts her husband “Are you not the king?” (verse 7)- in other words, your word is law, and you say what is right and just, not a mere vineyard owner like Naboth. But Ahab knows in his heart that Naboth is in the right, because it is a right defined by God, and not alterable by any human power.

The political struggles of history have been about controlling the absolute power of kings, landlords and other tyrants. But does that mean that democracy itself, now that it has tamed the barons and the kings, has the power to define right and justice in every case? In the United States the democratic rights of the President and of Congress are limited by a Constitution (which can only be amended with difficulty) and a Supreme Court which interprets that Constitution. Is that a better way?

In the Middle Ages the Church (at least in Western Europe) claimed the right to interpret God’s justice, and to challenge the actions of the State. But when the Church itself gained power it lost its authority to question those who have power. And there have been times when the Church has simply reinforced the power of the State (some would claim the Russian Orthodox Church is inclined to do precisely that at the moment for President Putin).

Lord Sumption has raised some important questions- whether his Reith Lectures next year will help to answer them remains to be seen.


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