Exclusive: ‘We’ve got to stand up’ to cultural puritans, says Lord Sumption
Scottish Legal News editor Kapil Summan speaks to historian and former Supreme Court justice, Jonathan Sumption, Lord Sumption, at his home in London. They discuss criminal reforms; the limits of law; the decline in legislative drafting in the UK; free speech and the need to stand up to the new cultural puritans.
I arrive neurotically early in Greenwich and, having brought the weather with me, soaking wet. It is only once I ring the bell of Lord Sumption’s imposing Grade II listed Manor House that I have a moment to be nervous about meeting one of Britain’s most distinguished post-War lawyers. Expecting something reminiscent of a meeting with the headmaster I am instead welcomed with a smile and assurance that it is fine I am early as I have come “rather a long way”.
Jonathan Sumption called to the bar in 1975 and took silk in 1986. Unusually, he never served as a judge in the High Court or Court of Appeal – like most aspirants to the Supreme Court and its predecessor, the Appellate Committee of the House of Lords. His appointment to the Supreme Court was approved in 2011 and he was sworn in the following year. Among his notable cases at the bar was that of Russian billionaire Roman Abramovich, from whom he received what is reputed to be to highest legal fee in British history.
Known for his formidable intellect and erudition, he is also an eminent historian with an enviable prose style who is famed for his history of the Hundred Years’ War by scholars and the public alike. Since retiring from the bench in 2018, he has courted controversy with his views on the lockdowns and suggestions that it will take decades to redress imbalances in the gender and ethnic composition of the judiciary.
“You have the advantage”, he tells me as we sit down in a reading room, “as you have all the questions”. I suggest we avoid the details of cases, which, happily, we both agree are “boring”.
Serious worries over the presumption of innocence have been brewing in the UK for at least a decade and Scotland’s planned juryless trials pilot, which has received much media attention, is seen by many as a forerunner to rehabilitating the presumption of guilt in fact if not name. Writing in The Guardian this month, former First Minister Nicola Sturgeon said of the plans that “before the ink was even dry on the draft legislation” people had taken “fixed positions”. But the debate has been going on for more than two years. The public, of course, do not know this – but Ms Sturgeon does.
The conviction rate in rape cases is routinely compared to that of other serious crimes, the implication being that crimes designated as ‘serious’ should have similar conviction rates. All this reveals is that the Scottish government, academics, the public and even some in the judiciary think that the use of the adjective ‘serious’ means that the conviction rates for these crimes should align despite the fact they are different in kind.
Lord Sumption says that he is “not a great admirer of the jury system”, as “I do not believe that any one should be convicted of a crime by a tribunal that does not have to give its reasons”.
He nevertheless thinks that the Scottish government’s juryless trials plan is misguided.
“I think that the Scottish ministers are making a serious mistake if they assume that judge-only courts are more likely to convict alleged sexual offenders. Experience suggests that the more serious the offence, the more likely a jury is to convict. This is particularly true of some sexual offences, for example those involving children.”
The conviction rate is relatively lower for rape, he notes, because the complainant and the accused “are usually the only witnesses, and the defence of consent is often difficult to rebut beyond reasonable doubt. Judges are likely to be at least as conscious of these difficulties as juries”.
And juries are cautious by nature: “It’s an unfortunate fact that there are invented allegations of sexual abuse. I’m not by any means suggesting that most, or even a very large number of cases, are fantasies but a few are and that is enough, it seems to me, to make juries particularly cautious before convicting in the absence of pretty convincing evidence.”
Similar moves are now afoot in England and Wales, where the Law Commission has begun to ask whether juries are no longer fit for purpose in sexual cases. Proponents of their abolition there will have to contend with the research of University College London’s Professor Cheryl Thomas, which used actual juries, as opposed to the studies using mock juries, on which reforms in Scotland have been predicated.
On the other end of the scale, one Conservative MSP sees nothing wrong with using parliamentary time and resources to introduce a bill on the theft of dogs – the Dog Abduction (Scotland) Bill – seemingly unaware of the offence of theft. The proposal seems designed to signal our increasingly childless society’s veneration of dogs and the fact that it is insulting to compare their theft with other ‘things’. But that is what they are in law.
Lord Sumption says that this is because many people “feel that the law should really be declaratory” and that it should “announce one’s values to the world”. The issue is one of the central themes of his book Trials of the State: Law and the Decline of Politics.
“So it doesn’t actually matter to these people whether there’s already an offence or not. What you need is an act of Parliament that serves as a clarion call. And I just don’t think that is a sensible way of making law. If you have many laws dealing with the same offence, they’re going to trip each other up sooner or later.”
I ask if laws have not just been poorly conceived but if there has also been a decline in the art of legislative drafting.
“Yes, is the answer. There has been a decline. And the reduction of the standard of legislative drafting in Scotland is even lower than it is in England.”
He cites the Scottish government’s attempt to enshrine the United Nations Convention on the Rights of the Child in domestic law, which was defeated at the Supreme Court.
It was “in part rejected by the Supreme Court on the ground that it was incomprehensible, and therefore couldn’t rank as law. That’s a pretty stark thing to say about something that’s been through the whole parliamentary drafting and legislative process”.
“If you try to do too much, you end up having to put so many ifs and buts in it, that the whole thing becomes a complete mess, and it’s impossible to accurately interpret the statute.”
He also says that part of the problem is that “government draftsmen tend not to be as able as the lawyers who go into much more lucrative private practice”.
Codification of “many aspects of commercial law at the end of the 19th century and the beginning of the 20th century in things like the Sale of Goods Act and the Marine Insurance Act” resulted in “masterpieces of drafting”, he tells me.
“And one of the reasons for that is that the government drafting office had nothing to do with it. They sent it out to some of the most distinguished commercial lawyers in private practice of the day. And the results were a great success. I think there’s a case for doing that now. Not always, but in some cases.”
In recent years free speech has become a regular fixture of the news agenda in a way that no one would have foreseen.
Lord Sumption says he thinks the Free Speech Union, which campaigns on this front and supports people who are the victims of pile-ons, is an “admirable group” and that free speech is “something which is pretty bad throughout the UK” but, he adds, “the signs are that it has gone further in Scotland”.
Of the SNP leadership race earlier this year, he remarks that the “reception of Kate Forbes’ views about gender has been pretty appalling, particularly as she has coupled it with statements that this is not something that affects her view of applying the law as it is”.
“It seems to me that although I’ve got misgivings about a lot of her opinions this is an honest and honourable woman and the treatment to which she was subjected was disgraceful,” he adds.
I ask if free speech is given as much weight as other rights by the human rights establishment or if it has been effectively downgraded?
“It depends what the subject is. The human rights establishment is very much more interested in outcomes than in process and so they tend to be extremely interested in the application of human rights to some issues but less to others.
“For example, the human rights lobby was remarkably silent during the pandemic, when some aspects of the government’s policies were very difficult to reconcile with basic human rights, not just the human rights convention, but standard English and Scottish law principles about basic freedoms and you never heard a peep out of them – essentially because they believed in the policy.”
He thinks that Maya Forstater’s case, which established that gender-critical beliefs are protected under the Equality Act, is “much more interesting than people realise” and that people are often more sensitive to social rules – and the cost of breaking them – than the law.
“The first instance judge said her views on gender were not entitled to respect in a democratic society” but the appeal court, he adds, “exploded that idea”.
“So their heart is in the right place on free speech and the pressures – as John Stuart Mill pointed out back in the 1860s – come not from the state but public opinion.
“Public opinion is very oppressive sometimes and always has been. In the late 19th century if a woman separated from her husband she was ostracised socially. That was a much more powerful source of pressure than the previous legal restrictions on women separating themselves from their husbands. Public opinion and the desire of people to suppress views that they strongly disagree with is a really serious problem and we’ve got to stand up to it.”
I suggest that the label human rights is too broad for what it actually describes.
He comments: “It’s been made much broader by decisions of the Strasbourg Court, which have expanded it to beyond recognition by comparison with what it was expected to deal with when it was drafted. Human rights is one of those ‘hurrah’ words and some aspects of human rights are absolutely essential to any civilised state and others are not and there’s a reluctance to get beyond the slogans.”
The reluctance stems from taboo around human rights and other topics and the strawman attack to which people who dissent know they are vulnerable – namely that by criticising the part, they will be accused of opposing the whole.
Much of this thinking is incubated in universities, where the results of political correctness tests at St Andrews, or the decolonisation statements from Oxford and Cambridge, are “pretty horrifying”, Lord Sumption says.
Universities seem to have decided that a few events of a few recent centuries are somehow definitive of all human history.
But, the former judge tells me: “The essence of the art [of history] is to select objectively what are the relevant facts. It’s terribly easy to produce a completely false narrative without actually telling lies simply by tendentious selection or exaggeration.”
He concludes: “There is a tendency for the process of selecting relevant facts from a mass of historical data to be entirely guided by a modern ideological agenda – and I think that is the end of serious history.”
The author is grateful to Karolien Celie for her help in preparing for this interview.