Retired appellate judge Stephen Sedley has hit out at arguments made by Supreme Court Justice Jonathan Sumption about judicial interference in political life, stating that the contention “harms the standing of the judiciary and confidence in the law”.
Sedley, who sat on the bench for 19 years until his retirement last year, said assertions made by Sumption SCJ that judges should keep out of political life was wrong.
“Nobody who knows the history of English public law would deny that there have been decisions which smack at least as much of politics as of law,” Sedley states in an essay written on the separation of powers for Judicial Politics.
Sumption SCJ raised eyebrows at Lincoln’s Inn in November when he delivered a lecture arguing that “English public law has not developed a coherent or principled basis for distinguishing between those questions which are properly a matter for decision by politicians answerable to Parliament and the electorate, and those which are properly for decision by the courts”.
In his essay, Sedley responded: “An uninstructed reader would gain little notion from Lord Sumption’s lecture of the extensive body of judicial authority recognising the inadmissibility of adjudication on political issues.”
Sumption SCJ, continued Sedley, repeatedly insinuated “that judicial interference in the political process regularly occurs: ‘The judicial resolution of inherently political issues is difficult to defend.’ It is not only difficult to defend; it does not happen.”
The judiciary is right to consider its impact on the executive and legislature, he added.
“I have spent my working life thinking about and dealing with little else,” Sedley wrote. “But one thing we have not done is to conflate government and legislature, as Sumption does in order to suggest that both ought to be equally immunised by their democratic credentials from judicial oversight.
“The courts go to considerable lengths to respect the constitutional supremacy of Parliament; Sumption gives no serious instances to the contrary.”
Former Brick Court Chambers barrister Sumption SCJ was the first silk to be elevated to the Supreme Court without first joining the High Court and Court of Appeal (4 May 2011).
Sumption SCJ’s appointment caused a stir at the bar because it was widely thought to have been delayed to allow him to act for Roman Abramovich in his mammoth battle with Boris Berezovsky (6 April 2011).
Sumption SCJ was unavailable for comment.