Sovereignty
Dr Arnheim is, of course, entirely correct to assert the sovereignty of Parliament in our constitutional system. The democratic authority of a popularly elected legislature is final when exercised in accordance with the law. But the judiciary also has its own independent constitutional role. Its vital functions are to interpret and apply the law and to ensure that the law is upheld, not least by the government and Parliament itself.
Debate
The Sumption-Sedley debate occurred before Sumption joined the Supreme Court and his Reith Lectures ‘Trials of the State’ were delivered and published in 2017 after his term of office had ended. It was in his lectures that he expressed the concern alluded to by Dr Arnheim at ‘our persistent habit of looking for legal solutions to what are really political problems’. This is not what happened in the two cases mentioned above.
The Supreme Court voted 3 to 2 to allow the trustees the freedom they wanted. Dr Arnheim points out that adding the views of the lower court judges to those of the Supreme Court, you have a majority for the opposite result. He makes this point three times. Yes, it was a narrow decision. But that is immaterial: in our system the final appeal is what counts.
Parliament could, of course, in all these cases have pre-ordained a different result. They could change the law to prescribe a different outcome in future similar cases. The government has announced its intention to seek to reverse the effect of the Palestine Solidarity case. Personally, I hope Parliament does not agree. But its power to do so is not in doubt.
