Lord Sumption is wrong: laws can change facts

It’s with triple reluctance that one disputes anything said or written by Jonathan Sumption. First, Lord Sumption is among the commentators I most admire, with an intellect against which it must be foolhardyto pit one’s own. Secondly, as a former Supreme Court justice, his legal expertise will be immense, whereas I only read law as an undergraduate, and that more than half a century ago. Thirdly, on the merits of the government’s proposal to declare Rwanda safe for asylum seekers in UK law, and perhaps ‘disapply’ any international convention that says otherwise, I actually agree with him: I, too, doubt the wisdom of the move.

But in a column for the Sunday Times on 19 November Lord Sumption made a most important statement; I don’t think it’s correct; it’s pivotal to this case; and as (should the Upper House consider draft legislation to give effect to the government’s proposal) their lordships may approach Sumption’s argument with grave attention, I’ll now put another point of view. Mine is that both statute and case law have regularly done what Sumption denies they’ve ever done – and that often they must.

This is what he wrote: ‘There is no precedent for changing the facts by statute and requiring the courts to accept them whether true or false.’ Really? Let us turn to Dickens.

‘That is no excuse,’ returned Mr. Brownlow. ‘You were present on the occasion of the destruction of these trinkets, and, indeed, are the more guilty of the two, in the eye of the law; for the law supposes that your wife acts under your direction.’

‘If the law supposes that,’ said Mr. Bumble, squeezing his hat emphatically in both hands, ‘the law is a ass – a idiot.