#115 - Lord Jonathan Sumption - Can Democracy Survive the Britain We’re Becoming?

Lord Jonathan Sumption is a British judge and historian, who served as a Supreme Court Justice from 2012 – 2018. He is the author of The Challenges of Democracy And The Rule Of Law, the Sunday Times bestseller Trials of the State, Law in a Time of Crisis, and Divided Houses, which won the 2009 Wolfson History Prize.

Across Britain and the wider West democratic decision-making is increasingly being hollowed out by courts, by bureaucracies, by delayed elections, by restrictions on speech, and by a political class that often appears unwilling to govern according to the public will.

In this episode of Thinking Class, Lord Jonathan Sumption examines whether democracy and the rule of law can survive the conditions we are now creating.

We explore:

• What democracy and the rule of law actually are, and how historically fragile they’ve always been
• Britain’s legal inheritance and the health of the Rule of Law
• Whether freedom of expression is a precondition for democratic legitimacy
• The effects of mass immigration, sectarian politics, and demographic change on democratic consent
• Whether universal suffrage can function without a shared political community
• And whether the greatest threat to democracy comes from our institutions or from ourselves

This is a sober, historically grounded conversation about law, legitimacy, and the future of self-government in Britain and the West.

About Thinking Class:

Thinking Class is a long-form interview podcast exploring the cultural, historical, and moral forces shaping England, Britain, and the wider Western world.

Hosted by John Gillam, the show features serious conversations with historians, academics, and independent thinkers.

Thinking Class is concerned with discovering long-term patterns over headlines and hot-takes. Expect historically-grounded analysis on matters of national character, institutions, demography, belief, and political legitimacy.

New episodes every week.

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Transcript

SPEAKER_05 0:00

Hello, classmates, and welcome to Thinking Class. I'm John Gillam, and today I'm joined by Lord Jonathan Sumption. Lord Sumption is a former Justice of the United Kingdom Supreme Court, medieval historian, and one of Britain's most formidable legal minds. He's also the author of several books, including most recently The Challenges of Democracy. In this episode, we examine whether democracy and the rule of law can survive the conditions we are now creating, what democracy and the rule of law actually are, and how historically fragile they've always been, Britain's legal inheritance and the health of the rule of law, whether freedom of expression is a precondition for democratic legitimacy, the effects of mass immigration, sectarian politics, and demographic change on democratic consent, whether universal suffrage can function without a shared political community, and whether the greatest threat to democracy comes from our institutions or from ourselves. This is a sober, historically grounded conversation, and we cover a whole gamut of topics within law, legitimacy, the future of self-government in Britain and other Western nations. Jonathan and I don't always see eye to eye, specifically on how well we are set to deal with the challenges of the demographic transformation that is taking place, though we do agree at least it is a challenge. If you value serious, historically grounded conversations about culture, politics, and civilization, then you'll be right at home with Thinking Class. Subscribe on YouTube, Spotify, or Apple Podcasts, and share it with others who want to think more deeply about what we have inherited and what we owe to the future. You can also find essays, reflections, and further reading on Substat. Enjoy the show, classmates. Happy to be here. Well, it's an honor and a privilege to be able to interview you. I think today is a good day to be speaking to you about your topics of expertise. Right now, the moment in Britain, it seems that public faith in democracy is weaker than at any point in living memory. I would say that you could extend that across the West. And the reasons people would perhaps put forward for this is it seems that democratic decision making is being hollowed out, whether it's by courts, bureaucracies, delayed elections, maybe even a sense that the political class increasingly governs around the public rather than for it. There are several pressures on democracy, whether it's through mass immigration, the rise of sectarian politics, the erosion of free expression. And if these are not temporary and they're structural and accelerating, then we ought to think and talk about them. So to think clearly about the moment, I think there's no better person than you. You're a former Supreme Court justice, a medieval historian, and one of Britain's most formidable legal minds. So today we'll ask whether the whether democracy and the rule of law can survive the conditions now being created and where the danger comes from, whether it's institutions or or even from ourselves. So to get going, Jonathan, in your recent book, The Challenges of Democracy, you wrote that the British state, like other Western democracies, faces very serious challenges. Pressure for a more authoritarian model of democracy will intensify in the coming years. In important areas of our national life, these pressures will probably prevail over the liberal instincts that were taken for granted a generation ago. I do not welcome this prospect, but I think that the cultural and institutional foundations of our democracy will probably survive. Why do you think they'll survive?

SPEAKER_04 3:57

Well, uh, I'm talking specifically about British democracy when I say that. I think that there are considerable advantages uh in having a parliamentary democracy. Um Parliament is obviously at at the centre of the informal British Constitution, and uh its uh political role in holding ministers to account has been quite effective over the last few years. Um in in particular, uh I think that if you that it would be extremely difficult to do in Britain what uh Donald Trump has to some extent succeeded in doing in the United States, because in a parliamentary system you have to carry a lot more people with you. Um the conventions, which are critical parts of any constitution, whether formal or informal, have on the whole survived. Uh the um defenestration of Boris Johnson was a critical moment in our constitutional history, because he had made an overt claim to presidential status. His argument was that Britain had effectively become a presidential system, uh and that the electoral victory in december twenty nineteen for the Conservative Party was essentially his victory. It was therefore, he said, quite wrong for his MPs to throw him out. Well they did throw him out, uh and it was a very reassuring moment. Um I think that the um that people are sufficiently pleased at the thought of being MPs uh to retain the status that they showed that they still had on that occasion.

SPEAKER_01 5:51

Hmm.

SPEAKER_04 5:52

Well That doesn't mean to say uh that democracy is in a healthy state. What it means is that Parliament will remain uh a dominant feature of the British Constitution. We will not succumb to a a a a a tyrant. But there are many stages between tyranny and democracy.

SPEAKER_05 6:13

Okay, well maybe that's a good segue into thinking about how we understand democracy, what it is, how long it has been around for, uh and and how historically fragile it's been. You you provide a few examples in your book. Perhaps you could tell us what you think we mean by democracy and whether we can we can take it for granted.

SPEAKER_04 6:35

Well, democracy uh is a uh a procedural system for decision making. It's a system of collective self-government. Um it's not about outcomes, it's about processes. Um it's essentially a a system uh by which uh the government is held responsible to elected representatives whose mandate uh is uh whose powers are limited, um and uh whose mandate is revocable. Uh not the same as justice, it's not the same as equality, it's not the same as human rights. These it's a method of resolving our differences about all of those things.

SPEAKER_05 7:21

And with regards to how democracy is seen as coming under pressure, and and I think specifically with regards to its legitimacy, is this because it is it is failing, or is it because it's being bypassed?

SPEAKER_04 7:38

It's because of um significant cultural changes about the way that we look at politics. I mean, you can argue about how this has happened, but I think that what has happened is reasonably clear. Um democracy uh uh depends on uh a uh degree of uh political tolerance which is much weaker now than it was. Um essentially the function of any constitutional order is to enable people whose interests and opinions differ very radically on many issues, to live together in a single political society without the systematic application of coercion. Um in order to achieve that, you have to regard the maintenance of the decision making process as more important than succeeding in your personal ambitions or winning on your particular political program. Um that requires a some bipartisan approaches to politics. You have to uh regard your uh opponents as fellow citizens with whom you disagree and not as enemies to be smashed. Um and uh that is an attitude that is failing. Uh people do not now regard it as more important that the system should work um uh than uh that they should they'd much they'd much rather win. Um now, obviously people have always had ambitions and they've always wanted to get their political program through, but there has generally been uh a bipartisan belief in the Constitution as a method of resolving these issues. Uh that situation has completely vanished, almost completely vanished in the United States, um uh and it is much weaker in Britain than it used to be.

SPEAKER_05 9:50

Why do you think we've found ourselves in a position where we uh no longer see ourselves as uh one political community?

SPEAKER_04 10:02

Well uh in part this is due to uh a general coarsening of political discourse which has been um developing over several decades. Um again, to find the extreme version of this you have to look to the um grotesque behaviour of the President of the United States. Um uh we haven't got anything like as far as that. Um but I think that uh this is obviously a complicated question, but in my view, um the uh rising and in some ways unrealistic expectations that electorates have of the state is a large part of of the reason why we have uh got where we have got. Um this is a natural tendency of mass democracies, but um th they uh provoke expectations um which the growing power of the state um makes they they believe that there's virtually nothing that the state uh cannot do with sufficient resources uh and uh enthusiasm. Um that's an illusion, but it's a very widely held illusion. There are many things that the state can't do, and in particular, um it's while it can remove barriers to prosperity, it cannot achieve um economic prosperity, which is usually the number one issue uh in elections. When people um uh find that their expectations uh uh have been disappointed, uh they tend to turn to other ways of making decisions which they think are more likely to um get them what they want. They turn to strong men. I mean the trouble is that strong men don't always give people what they want. And they want different things.

SPEAKER_05 12:11

Indeed, indeed. I I'll I'm I'm expediting this question. Uh I I was anticipating asking it later, but c considering you brought up the demos and our our expectations of the state, I think it's notable that if you read about stages in British history and development and all the rest of it, that there was a time not that long ago when the demos was much more literate, both quite quite literally with regards to literacy, but also with regards to their their own history, whether it was uh the English canon at all classes, or whether um people could articulate um what it was to live a good life. We were in um, I suppose inculcated with a with classical Christian ideals and all the rest of it in education.

SPEAKER_04 13:04

You're talking about the most uh educated people there. I mean, it's never been true of the entirety of the population.

SPEAKER_05 13:14

Well, true. Um, but I suppose if you look at our um leadership class of today, whether it's our own prime minister, for example, uh at the time of uh recording, he doesn't have favourite books or poems or all the rest of it. So almost no linkage to British history and civilization. I suppose the point I'm trying to get to is it seems that at various points in history there have been um a better understanding of self-government, civic virtue, civic mindedness, and then through the centralization of the state in uh the the wars, and the state could then do much, is that much of what we would have taken responsible f responsibility for individually has now been outsourced to the state, and so we look to them for all of our answers. Well, firstly, do you agree with any of that estimation?

SPEAKER_04 14:05

Secondly Yes, I I broadly agree with that analysis. I mean, the um the principal limitation on the power of the state historically uh has been its ignorance. Um the um the state has had a monopoly uh of physical force for quite a long time, uh, but it is now acquiring not a monopoly, but quite extraordinary in historical terms, uh resources for not only collecting information uh but filtering and analyzing it in a way that enables it to concentrate force against particular groups or individuals, uh or to appropriate resources uh on a scale which was not previously possible. Um so the state has become very much more powerful, um and that is uh one reason why expectations of the state are so high.

SPEAKER_05 15:04

And the impact on democracy then uh when we know the state is becoming as powerful as it's ever been, um and it is using these new powers in which to um suppress um uh I don't want to say dissent, I'm sure does happen, but it certainly suppresses uh dissent of um criticism of the current um ruling philosophy. So I suppose people would argue that broadly we're ruled by a kind of hard multiculturalism.

SPEAKER_04 15:43

Um uh I don't I don't think it's true that it suppresses dissent. Uh I think that there are some issues on which um uh uh one's fellow citizens try to suppress dissent. Um but I don't believe that the state tries to suppress dissent. I think the essential problem is the disappointment of expectations, um uh particularly economic expectations. Uh the the disappointment of expectations is a very dangerous moment in the history of any democracy. It is the main reason why most of Europe turned to autocrats between the wars with the disastrous results as we all know. Um that was a particularly dramatic um uh change of uh of political um temperature. Um but we are experiencing something of the same uh in r uh at the moment, um because essentially I mean Britain has has it's now almost a cliche to say this, uh has uh had a very sluggish experience of growth uh in the last um uh two decades. Um and uh what is more, such growth as uh there has been has been concentrated uh in a very small number. The most uh uh dramatic example of this is the United States again, uh because since the nineteen eighties middle class incomes in the United States have experienced sluggish growth at a time when the United States um uh uh economy as a whole has been extremely prosperous. It has at the moment a growth rate which is impressive by comparison with other democracies, um but the benefits of that have been concentrated in relatively small sectors of the economy. Um and that is why at the same time as middle class incomes have been stagnating, um the incomes of the top one or five percent have uh enjoyed considerable ra and rapid growth. Now in Britain we do not have the have not had for some years the rate of growth that the United States has recently experienced, but we also have the phenomenon that um uh that prosperity is increasingly concentrated in sectors that um are dominated by relatively small numbers of people, but make a disproportionate contribution to the economy. And it's the same sectors, it's information technology and and financial services above all.

SPEAKER_05 18:39

Another industry that I suppose we have been predominantly known for is quality education. Uh, we have some of the uh most prestigious educational institutions on the planet, Oxford, Cambridge, St Andrews, all the rest of it. And uh I want to turn this conversation towards freedom of expression within a democracy.

SPEAKER_04 19:03

So I mean I should point out at this stage that uh uh although these are impressive institutions, they are uh uh suffering at the moment from uh uh an extraordinarily uh ill-conceived mode of financing them. Uh at the moment, um Oxford and Cambridge and other elite institutions are uh uh uh having to uh educate people uh at with fees of about a third uh of the actual cost. Uh now they can weather that for quite a long time because they're very well endowed. Other universities, some of which are excellent, have not got endowments on the same scale. And unless we find a way of uh properly funding uh tertiary education, uh these national assets, which are of very great economic importance, are going to disappear over the next generation or two.

SPEAKER_05 20:05

Well, I suppose for uh a section of our university sector that that would be a travesty given some of the the institutions that we we've mentioned. Uh however, I suppose where to take this conversation is uh there's several examples from recent years that these institutions where people are supposed to engage in free and open inquiry are becoming increasingly hostile to open debate. And many of our middle classes uh go through those institutions before they come out into the world and uh become their own contributors to society and obviously have the democratic franchise and all the rest of it. What do you think this hostility to open debate and a certain way of seeing the world is doing to our democracy?

SPEAKER_04 20:56

Well, first of all, it is uh confined to certain issues. Um I mean uh the obvious example is um imperialism um and uh uh uh and gender. Um these are classic examples of the problem identified a hundred and fifty years ago by John Stuart Mill, when he pointed out that the main source of in of uh uh the main threat to free speech that comes not just from governments, or not at all from governments in his day, uh but from uh sector sector intolerant segments of the population. Um I think in fact that um we are witnessing a uh retreat uh from the intolerance that you mention. Um it's a slow process, just as it was a slow process for the intolerance to come into existence in the first place. Uh but uh I I I think that universities are have become a lot more conscious of the dangers of imposed conformity uh and a bit more effective in dealing with it. And that's a trend which I would expect to continue.

SPEAKER_05 22:16

And would you say um that that trend will continue in wider society? So I suppose in recent years we saw the development of hate speech laws and hate crime legislation which appear to be uh receding uh as well uh in the last six months or so, um, though there are still suggestions of uh enshrining in law concepts like Islamophobia or anti-Muslim hatred back to the um receding or the rolling back of the hostility toward open debate in the universities, that had been happening out in the public square as well, hence you had hate speech laws, hate crime legislation, they're being repealed. Is it is is that trajectory going to continue?

SPEAKER_04 23:01

Hate speech is the principal issue. Um I mean, if you look at uh a document like the um recent um uh US congressional report on free speech in the European Union, they have two uh main targets. Um is uh restrictions, which seem to me to be perfectly proper on the kind of material to which young people can be exposed, particularly under eighteen year olds, uh and the other is a denunciation of hate speech laws. I think that the denunciation of hate speech laws has considerable force. Um uh uh but this is a very uh disputed topic, um and there are a lot of people who feel that um uh particularly ethnic and religious minorities ought to be protected uh against being hated. Uh in my view, uh uh the we need to have a very clear principle uh in order to justify um uh uh uh suppressing any kind of opinion. Um and I'm not talking here about things like um regulating amount we can spend on election expenses and so on. I'm talking about attempts to regulate the content of what people say. Um and if we don't have a principle uh to control this, uh we are going to end up um uh by trying to ban anything that somebody doesn't like. Whereas the essence of free speech is the right to say things that other people don't like. Um what is the principle? Uh in my view, the principle that can that justifies any uh suppression of opinions uh is the principle that we do not allow speech to be used as a mode of of coercion or manipulation. Um and by that I mean first of all, uh I think it's justifiable to suppress speech which is designed to incite uh breaches of the law. So people who um uh who tweet uh uh that uh it's time to go and burn down asylum hostels are quite rightly um locked up. Um that is one principle. Um I would also apply the same logic to people who encourage um uh discrimination uh in respects against minorities, in respects which are protected by law. If you uh try to encourage people to discriminate against um uh ethnic minorities, for example, in employment, uh I think that that is quite rightly um objectionable and properly uh can be suppressed. Um that's the first principle. The second is I think that the uh the law can perfectly properly be used to protect people who are uh uh vulnerable because of their youth. I think that we have to take we have to pretend uh that um uh uh adults are capable of making their own decisions and judgments, even though um uh in many cases this is wrong, factually wrong, uh because this is part of the respect that we owe to our fellow citizens. But none of that applies to people who ex hypothesi are in a uh at a at an age when their mental capacities are in the process of being formed. So I uh have no problem about uh the use of the law to suppress things that corrupt or manipulate um uh an underage people. Uh that is where I would draw the line. Uh the problem about hate speech is that it goes very much further than encouraging discrimination. Uh it is basically an attempt to protect minorities against being abused or disliked. Uh and uh I think that we must accept uh uh that a lot of things which we regard as grossly discourteous um uh will happen. And I think that minorities have got to be reasonably robust about this. We all uh will face at some stage in our lives um uh uh abuse from some quarters. Um and the fact that it's a whole group that is being abused doesn't seem to me to make a great deal of difference.

SPEAKER_05 27:52

Well, we've begun to touch on the uh nature of uh modern Britain. It's it's diverse, uh, and uh with that I suppose my question is uh based on uh a paraphrase of a politician from many years ago, Hugh Gateskill, who once described Britain as a family with disagreements? Do you think that description can still apply when Britain has changed demonstrably since then, where there are big diasporas with their own interests, and um indeed we've seen this uh materialise in the Muslim vote, Hindu manifesto. Uh d does this suggest the political community aspect is has faltered and we have sectarianism on route whether we we like it or not, or is there a way through this? What would the state need to do to get us back into one political community?

SPEAKER_04 28:52

I think that the state is uh probably not the right instrument for doing that. Um uh the only instrument that is likely to work, and then only uh partially, uh is education.

SPEAKER_05 29:10

Well that's a that's a that's a a b a big one because I suppose if you look at our educational system at the moment, it largely encourages um a divergence of interests, it actually promotes uh communities um having their very own distinct flavours, contra to uh the the the customs and mores, I suppose, of of Britain. So what we'd need then is does it? I mean, what do you have in mind? Well, I suppose if you were to go and um look at footage of um various um school days where it'll be like let's let's celebrate our home culture day, and everyone comes with their their own flags and their own traditional dress. Um there are very few schools, unlike perhaps say the Michaela school of Catherine Burbel Singh, that tries to go full civic nationalism and get everyone on board with what Britishness is. And uh as far as I can see, it seems that if anything, it's actually bring your whole selves and your different backgrounds to to the school, to the education system, and that we generally do um see the the British way as being a bit old and oppressive. Now, some of that's a feeling, but I also think you can go and find evidence of this that we generally promote other cultures above our own. So if we're saying education would get us back into one political community, would you not need some sort of vision, some civic nationalist vision which is going to bring us all on board and uh and and back into the same community instead of promoting everyone else's?

SPEAKER_04 31:02

Well, um I uh entirely agree with you that we should be promoting our own um culture and history, uh, but it doesn't follow from that that we should um uh suppress or ignore other people's. I mean I'm sure you're right to say that um uh that some schools uh uh promote minority cultures at the expense of the majority culture, and I think what that is rather silly of them. Um but you can promote all of them.

SPEAKER_05 31:39

Does does that not end up putting at risk the uh institutional setup of Britain in the future? And where I'm going with this is uh ethnicity, king cultures seems to be political. It seems to find political expression, and demography suggests we're headed for a future of uh a minority of white British by the 2060s. If you have large diasporas who are all politically enfranchised and do things in a different way, um democracy may survive under the British principles, but perhaps it takes a totally different flavour, and then new principles end up finding their way into the governing of the country. So would you would you would you agree with that? Do you think there's a there's a there's a risk in future that unless we get on top of this that we could end up with an unrecognizable political settlement in a few decades' time?

SPEAKER_04 32:39

I I think it is unrealistic uh to expect to um uh produce a um a monoculture. When Hugh Gates School spoke, it was not unrealistic. But the scale of immigration has meant that we've got to adopt a different approach now. Uh I mean immigration is not reversible. Um and um I you know, I think that we we should be pr promoting traditional values, but of course if if you are if it comes about that Pete that people who uh of of a traditional European culture become a minority, um then obviously we're in a different ball game. But I mean if you're uh what you seem to be suggesting uh is that we should impose uh a single view based on some kind of brand of Britishness on everybody. Uh I I don't actually think this works uh uh beyond a certain level of of emigration. Uh the country which has tried hardest to do this is France, uh with very mixed results. Well actually historically we have actually got quite a good record, a better record than France, in um uh uh in integrating uh uh immigrant communities. It's under strain at the moment because of the sheer scale of immigration. Um but um we have historically been able uh to incorporate quite large numbers, smaller than current numbers, but still quite large numbers uh into uh a common culture. Now obviously the in the process the common culture has changed somewhat, but that's the way of the world.

SPEAKER_05 34:41

Yes. Uh if truth be told, I don't know what I'm suggesting other than because of this rapid scale of change, and you can see there's there's going to be political conflict in the future in in some way.

SPEAKER_04 35:00

Um we we may well find that in the um second and third generations of immigrants the attitudes are different. Um this is something that you know I I simply don't know how how this will develop. It's possible that it will develop into uh constant conflict. But when I said earlier in this interview uh that the uh the the role of any constitutional order is to enable us uh to live together in spite of differences without the application of coercion. Uh it seems to me that the growing diversity of the population makes that more important than ever.

SPEAKER_05 35:45

Yeah, agreed. Agreed. Uh I suppose it will be written.

SPEAKER_04 35:49

Democracy is the answer to this problem and not the cause of it.

SPEAKER_05 35:54

Yes. Uh democracy is the answer to that problem, though, I think because of the uh the emergence of these uh groups which have their own interests, whether it's Muslim votes or or what have you, then it suggests that demography will devour that democracy in the end, or at least a democracy that the moment that that political opinion um becomes um ghettoized in particular minorities i is a dangerous moment.

SPEAKER_04 36:25

Uh it's happened recently primarily because of the electric effect that um the events in Gaza uh have had on people in most Western countries. Um it's that is the issue which has produced um uh uh uh five um MPs of an avowedly religious party. I I think that's a very dangerous place to go.

SPEAKER_05 36:56

Totally agree with you. Uh thinking about the the longer term arc of democracy and uh its future, you mentioned in the book that democracy, as we know it, hasn't really been around that long even in our own nation's history, and so we we can't we can't take it for granted.

SPEAKER_04 37:17

Universal manhood suffrage dates uh from the second half of the nineteenth century. Uh and women didn't get the vote on the same terms as men until 1928. Um so I mean I think we can call ourselves a democracy from uh sometime around the eighteen sixties and seventies. Um so as you say, it's a relatively recent development. It was the product of a uh an unusual combination of very favorable factors, uh growing prosperity in uh of European and North American nations in the n in the late nineteenth century, um is is one of the more important factors, relatively high levels of education uh and uh uh reasonably robust institutions which had developed in Britain uh but were in themselves pretty ancient. Um those were very favourable circumstances, and they were common to most of the countries that are still democracies, but they're not conditions that we should take for granted.

SPEAKER_05 38:30

Those conditions, which I suppose are not the same now then, does that mean we are seeing the slow exhaustion of democracy, a painful transition to something else? Uh what realistic paths for exists to to keep it going, which don't rely on repression or illusion?

SPEAKER_04 38:50

Democracy has always depended on a large measure of economic good fortune, uh, and has always um suffered uh uh at times of intense economic disappointment. Uh that is what is happening at the moment. Uh it's not necessarily a permanent state of affairs.

SPEAKER_05 39:13

Um So we need to we need to find our pot of gold at the end of the rainbow once more as a nation.

SPEAKER_04 39:23

Well, we certainly need uh to uh uh address problems of productivity, but they are a classic example of something that the state has proved impotent to deal with.

SPEAKER_05 39:34

Hmm. Um I suppose a a final or a penultimate question for you, um Jonathan, is you um obviously a legal mind, uh the rule of law is something that we hold very uh dear in this country. Um do you believe that the rule of law is um is uh is be has been unmoored from uh the conditions in which it it developed and that is no longer uh matched to reality? Or do you think the rule of law is the the best thing we have to adjudicate uh amongst even our current conditions?

SPEAKER_04 40:18

Is it being misused in any way, I suppose, is the You can have the rule of law uh without being a democracy. Britain had the rule of law for at least two centuries before it could be described as a democracy. Uh but you can't have a democracy without the rule of law, because the whole concept uh of uh institutions having a limited and revocable mandate does depend upon law. Um is the rule of law in a good state in the UK at the moment? Uh yes, I think it is. Um uh I I do not think though there are people who say that the rule of law embraces a whole gamut of rights. Uh I mean uh Tom Bingham, a very distinguished judge, wrote a book in which he suggested that the whole of the Human Rights Convention uh was essential to the rule of law. Personally I certainly don't agree with that. There are some rights which are uh essential uh to a democracy and some that aren't. Um some that are essential to the rule of law and others that aren't. Um The rule of law basically requires uh that the law should be uh clear, uh that it should be prospective and not retrospective, that it should apply to the government as well as to citizens, and it should include the minimum of rights without which you can't be a society at all, uh for example, uh a right of personal security, uh freedom from uh arbitrary d detention or violence, because without that society is simply a contest in the deployment of physical force. Um society doesn't exist in any meaningful sense without those things. Equally there are some rights uh without which we can't be a democracy, freedom of assembly, freedom of speech, and so on. Um but uh provided that we recognize what the limits of the concept of the rule of law are, I think that we can say that it is in a reasonably good state uh in the United Kingdom. Um it's that is not true everywhere. Um it's clearly not true in the United States at the moment.

SPEAKER_05 42:44

And and how does uh that also stack up with regards to Britain's relations to supranational institutions? So with regards to the influence and impact of these on British law and democracy, whether that's European Convention on Human Rights, European courts, previously the European Union, uh I suppose question, Jonathan, is what do people typically get right and wrong about that topic, influence of the supranational system on Britain's law and democracy?

SPEAKER_04 43:16

I mean, international law is traditionally a body of law governing relations between states. Uh it has been very much expanded since the Second World War to pr uh produce rules of international law like the Human Rights Convention uh which seek to determine the content of domestic law. I think that um this is this is a potential problem. There is nothing in the Human Rights Convention, for example, that we cannot do domestically. There are some issues which have to be dealt with at an international level, even if they have ramifications for domestic law. An obvious example is climate change.

unknown 43:59

Uh

SPEAKER_04 44:00

It's not possible to deal with climate change simply on a national basis. You need international agreements. An example of the opposite principle is the Human Rights Convention, which uh contains a number of principles, all of which we're perfectly capable of dealing with domestically. I think that the problem about that kind of international law is that it cuts across lines of democratic accountability. It is I mean the principles themselves, as set out in the text of the Convention, are perfectly acceptable, and most of them have been part of English law for quite a long time. But uh the problem has been the international adjudicatory bodies like the Court of Human Rights in Strasbourg. And the that is really a problem for two reasons. The first is that uh because the Strasbourg Court basically makes up the law as it goes along by expanding and extrapolating existing rats into new areas which are not covered by the text, uh it's not contrary it's not consistent with the rule of law, because the first rule of uh the principle of the rule of law uh is that you have got to be know what the law is so that you can be guided by it. If you've got a court that springs new rights on you whenever it feels like it, uh that clearly isn't possible. The other objection uh to uh the supranational adjudication on on that sort of issue uh is that it uh it is a form of of of judicial legislation which bypasses the democratic processes of the state. But um i if the uh if if uh we bind ourselves to do what the Strasbourg Court says we should do, we are binding ourselves to do a number of things which may not command support or even a great deal of sympathy uh uh uh among a majority of our population. And these are both, I think, um very regrettable things. That's why I have come to the conclusion that we should uh leave the European Convention on Human Rights. Uh but I think that we should certainly have human rights, but we should uh we should deal with them domestically.

SPEAKER_05 46:25

And presumably Parliament being sovereign, it can pretty much do what it wants if you have a majority. So you can just withdraw from these things and manage it with yourself.

SPEAKER_04 46:37

Under the terms of the Human Rights Convention itself, you can withdraw on six months' notice.

SPEAKER_05 46:43

There you go.

SPEAKER_04 46:47

How would you have the argument that's normally trotted out, but I do not regard it as compelling, is that we um we need to subscribe to these international conventions uh in order to uh persuade other countries like Russia, Turkey and Hungary, for example, uh to behave themselves better. I think this argument uh grossly overstates the degree of influence which um Britain or any single country has. Um uh the um pressures uh on human rights uh in countries like Russia um uh arise from aspects of their own history. Um they uh were party for many years to the Human Rights Convention and uh habitually uh frequently ignored it. Um that is one indication of how little influence Britain and the other countries of the Council of Europe actually have on countries like Russia which are determined to ignore human rights. Um so I I regard this as a uh a uh extremely weak argument. I don't think we persuade anybody to uh to modify their internal law by uh by our own example. Um there are other countries, if notably in Eastern Europe, uh which having emerged from fifty years of Soviet domination, uh feel that they do need uh uh an international convention to set them on the right path, and I don't object to their taking that view in their own circumstances. Uh but they don't apply in the United Kingdom, where we have a very long tradition of the rule of law, um a uh uh a reasonable uh length of democratic experience, uh and quite robust institutions. Um the measures that are required to protect human rights depend very much uh on the political culture of each country, and they tend to differ from one country to the next.

SPEAKER_05 49:04

Would you apply those same difficulties we have with influencing those countries you mentioned on human rights to, for example, uh those international treaties that are made with large polluting countries like China and India on the matters of climate change? Is that something that we can trust?

SPEAKER_04 49:26

Because I mean what you got you have to distinguish between um uh between international arrangements to achieve results that can only be achieved by international cooperation and international arrangements which uh simply seek to dictate um results that you can achieve perfectly well on your own. As I said earlier, the Human Rights Convention is a good example of a convention that deals with matters, all of which we are perfectly capable of dealing with on our own. We don't need international cooperation in order to protect human rights. Countries like Canada and New Zealand have a very successful human rights record without having a supranational body to tell them how to do it. Um but climate change uh or pollution raises completely different issues because these are problems, they're genuine problems. I've I'm I am certainly not a climate change denier. They're genuine problems which can only be dealt with internationally. Um and for that reason it's perfectly legitimate to have treaties that deal with these things.

SPEAKER_05 50:35

And where those where those countries don't have the same history with the rule of law, can you then trust them to uphold it? People will point to China saying we will agree to these emissions profiles uh only when we think it's reasonable to do it, whilst Western countries will have to do it much sooner and then the goalposts keep changing. So I suppose critics would say those those those nations aren't playing by the same rules and yet we're engaging with them as though we're well there's there's a good deal of force in that.

SPEAKER_04 51:14

But uh, is the solution that everybody should play by their own rules? Surely not. I mean, uh climate change treaties uh are imperfectly observed by many countries. Uh, but imperfect observance is a good deal better than no observance at all.

SPEAKER_05 51:33

Uh my final question, so I can let you get on with your busy diary, you've been hot uh uh hot footing it around the United States, I believe, with a lecture series recently, and I'm sure you've got some more interesting places to be than this digital realm. So my final question to you, Jonathan, is what have you changed your mind on during the course of your life that felt like a big thing to change your mind on? And what was it that made you think differently?

SPEAKER_04 51:59

Well, I've changed my mind uh on withdrawing from the UCHR. I previously thought that the Strasbourg court was reformable, and I've changed my mind on that subject. Perhaps the most important point on which I've changed my mind in a British constitutional context is that having for most of my life believed that the first past the post system uh created a measure of a level of constitutional stability which was valuable and still does, I now think that we have to have uh a uh we have to move to some sort of system of proportional representation. Because the result uh of the first past the post system, combined with the uh declining membership roles of political parties, has been that the existing political parties uh do not cater for more than a modest proportion of the spectrum of opinion held by the population at large, and that is profoundly damaging uh in a democracy. Uh and uh if through if we had proportional representation, I think that we would lose the advantage some of the advantages of stability, and that would be regrettable, but it would be a price worth paying for a system in which perhaps governments had to negotiate uh coalitions of opinion, uh which represented a rather broader uh range of political sentiment among the public at large.

SPEAKER_05 53:32

A final follow-up to that, so I'm sure you probably knew him personally, uh Roger Scruton, he he wrote about he was a friend of mine, uh and I was a great admirer of his. Yes, uh and uh uh totally understandable why he a wonderful body of work. He he wrote uh about um the first past the post versus proportional representation issue, and he fell down on uh uh uh on believing first past the post was an imperfect solution, but one that would be better, and he believed it was better because proportional representation, what he argued was then you'd have all of these parties get together behind the scenes to then come up with a governmental programme that no one voted for at all. Uh do you think that moving to proportional representation under those circumstances would still be better than first passing?

SPEAKER_04 54:30

I do. Uh I mean uh if uh uh I mean parties are internal coalitions of opinion. Um and uh they produce slates of policies at general elections uh w which very few people would subscribe to in their entirety. So you do have to the point about government is that uh even in a democracy, well especially in a democracy, you can't uh you've got to choose which you regard as the most important issues, uh and recognize that no government is going to satisfy you uh with its policies on every single point. Um I recognize that there are uh advantages to the first past the post system, and I once took the same view as Roger did. Um but I think you have to recognise that when governments achieve one of the largest majorities in the post-war period on just thirty-three percent of the vote, um and when um uh uh parties like uh reform uh get more votes than the Liberal Democrats, but they end up with four seats. Uh whether the Liberal Democrats have sixty-two, something is seriously malfunctioning. Uh there's no perfect solution, and many of the criticisms which people make of proportional representation uh are justified. But the criticisms that they make of the first past the post system in current conditions are much more serious.

SPEAKER_05 55:57

Jonathan, thank you very much for being so generous with your time and for for coming on the show. Before I let you go, uh is there anything else that you're working on that we can expect to see in the near future? And why can people follow your work as it currently is?

SPEAKER_04 56:13

Well, I've published um two collections of essays, and um I don't know whether the c the party, the the population, the reading population has an appetite for more. Um But uh um I shall continue to to lecture and write articles uh for as long as people will read them.

SPEAKER_05 56:38

Well, uh you've certainly got a reader in me, and I know from the statistics I see of my viewers that they go on to buy things in the links. So uh at least at least there are people in this online community for for a sense of a better word uh that are still reading. Though I did actually read the other day Thank goodness for that. Yeah, I did read that non-fiction books uh sales have apparently um reduced greatly since the rise of the podcast. So uh I might be somehow taking I don't think the two things are connected.

SPEAKER_04 57:10

I read that article too by Sam Leith. Uh um I I I mean it's the the it it it is something that's happened, but whether it's due to podcasts, I very much doubt. Um my publishers told me that podcasts sell more books than almost anything else apart from literary festivals.

SPEAKER_05 57:28

Okay. Well, as a pro literacy man, that makes me feel much better about this endeavor, Jonathan. Well, I shall let you go. Thank you very much. Keep fighting the good fight, and I hope to speak again in the future. Okay, bye-bye. All the best.