Law in a time of crisis

Rowan Pelling asks former supreme court justice Lord Sumption about lockdown’s effect on liberal democracy

In the book you say there are many types of lawyer (imaginative ones, activists, sceptics etc). What type are you?

Most lawyers are all of these things at different times. But my default position as a judge was that one should stick to established principles. Law should be as predictable as the infinite variety of human experience and the changing values of our community permit. Departing from settled principle to accommodate a judge’s feelings, ambitions or idiosyncrasies is a form of retrospective judicial legislation which is almost always unjust.

An interview with the Guardian in 2015 said you eschewed punditry and were “invisible to the man in the street.” Now you’re visible from Mars. What unleashed you?

Believe it or not, I think even after retirement judges should be more reticent about policy issues than I have been about Covid-19. I departed from my own principle because I regarded the Government’s resort to coercion as an act of destructive folly and as a rejection of the liberal state to which I am profoundly committed. The issue is in my view the most important of our time, with implications that will long outlast the virus itself. Someone had to speak up for the young, the precariously employed and the small business owners whose lives have been laid waste. I am sorry that it should have had to be me, but no one else was prepared to do it.

How has your practice of the law been informed by your training as an historian?

A judge needs several lifetimes’ experience of humanity, but is granted just one. In the nature of things most experience is vicarious. History is an immense fund of vicarious experience.

What are the most important legal lessons you’ve taken from your study of history?

That social change is an organic development and is necessarily gradual. People who want to change the world fast will fail, and cause untold misery and destruction in the process. The law should not help them do it, let alone share their ambition.

Does the marked political polarisation of our time remind you of any other period of history?

And can lessons be learnt from that era, if so? The nearest European equivalent is the period of the Reformation and the religious wars of the 16th and 17th centuries. Polarisation occurs when people start thinking in tribes: religious, ethnic or political.

You gave a lecture at the British Museum in 2015 to mark the opening of its exhibition on Magna Carta, then proceeded to demolish the myths surrounding it. What was your aim?

Magna Carta is the classic example of a political programme reduced to the level of a mere slogan, by people who know little about it. I was rather shocked by the silly things that had recently been said about it by (among others) Margaret Thatcher and David Cameron. I thought there was a knowledge gap that should be filled.

You say the most important legal skill may be an ability to weigh evidence and analyse the facts. Have you seen a decline of that expertise?

No. I think that the English bar and bench have been good at it, and still are. In civil law countries, fact-finding is a neglected art, commonly reduced to arid procedural formality. I was once asked by a French judge how English judges could possibly find the facts since they were not present when they happened. The question seemed to me to disclose the vast gap between our respective legal systems.

You are a critic of the modern tendency to apologise for the sins of Empire and the past. Why so?

Because it assumes that the responsibility for past horrors, and therefore the guilt associated with them, is passed down to subsequent generations. This is morally disreputable and socially destructive. It perpetuates grievances which are of no continuing relevance and keeps the red embers of hostility between communities alive. Many awful things happened in history. In the interest of the future, we have to learn from them and move on.

Why would you scrap our current system of personal injuries law if you could?

Firstly, because litigation is a very expensive and inefficient way of compensating the victim for someone’s fault. Secondly, because the moral case for compensating people for personal injuries is just as strong whether someone else was at fault or not. Thirdly, since the only people worth suing are insured, we all pay the compensation anyway in the form of higher premiums on our insurance bills. So we might as well make compensation a form of social provision and pay for it through our taxes without adding the hideous expense of going through a legal process.

What does our current compensation culture say about our attitude to risk?

The question of compensation only arises when the accident has happened and it is too late to avoid the risk. So I think that these are distinct problems. Risk aversion is much the most serious of the two. It leads to excessively high expectations of governments, which they cannot fulfil, and to an unacceptable surrender of basic personal freedoms to the state.

You say in the book, “I profoundly disagree with the decision of my fellow countrymen to leave the European Union.” Why do you think the referendum vote swung to Brexit? And why do you call on readers to respect that decision?

The English (and the Welsh) turned against the European Union because they believed it was no longer the purely economic arrangement that it had been sold as. They thought its increasingly ambitious political agenda was a threat to their sense of collective identity. I do not think I have called on my readers to respect the decision, but I do call on them to understand it.

It doesn’t sound as if you mourn our departure from the European Human Rights Convention. What were its principal shortcomings?

We have not departed from the Human Rights Convention, which was never anything to do with the European Union. It still applies to us. I have no problem with the Convention itself, which is a fair statement of rights which are uncontroversial and almost universally accepted. Most of them have had an important place in English law for centuries. I do, however, have a fundamental concern about the multiple additional rights which the Strasbourg court has devised by a process of implication and extrapolation from the text, but which are not actually there. By treating the existence and extent of peoples’ rights as a legal and not a political issue, it has removed major issues from the political arena. Since the political arena is the only place where the citizens can influence their content, I regard this as inconsistent with a democratic constitution.

What do you make of Boris Johnson as a political leader?

I have described him in my book as a British Gaullist with a Christian Democratic social programme. The problem is not his views, but his methods, which frequently get in the way of his views. He is by instinct a demagogue, an adventurer and an amoral opportunist. These things are consistent with being a great Prime Minister. Disraeli was in all these respects very similar. But Disraeli had judgment.

What are the main problems with our current two-party system? Has the two-party system helped form the extreme political divides of our age?

In the past, the two-party system gave Britain an enviable degree of political stability. The current problem is that both parties have recently been taken over by extreme and intolerant factions, without that capacity to adapt their offering to changing public sentiment, which was once their saving grace. The effect is to limit the choice available to the electorate. It matters if voters have to ask themselves which party they least hate. The drubbing that Labour received at the last election may well turn out to be their salvation. The same thing may happen to the Conservative Party if Europe finally disappears from the political agenda. But I wouldn’t count on it in either case.

You are an outspoken critic of current lockdown measures. What freedoms do you identify as being most at threat?

First, the freedom to interact with other human beings, which is the source of almost all the creative instincts of humanity as well as being the basic precondition of human happiness. Secondly, the freedom to decide what risks we will take with our own bodies in our own homes, in the light of our own situation and that of the people around us. Thirdly, and fundamentally, the notion that there are islands of our personal life that are for us and not for the state to regulate. In these areas freedom of action is not a boon bestowed on us by the state, but a political right which should not be abrogated save in altogether exceptional circumstances. A disease more than 99 per cent of whose victims survive, which leaves no symptoms in about a third of those infected and mild symptoms in most of the rest, is simply not serious enough to qualify.

Do you think there was adequate strategic preparation for lockdown?

It is a matter of record that there was not. For a decade beforehand, governments had planned for a major pandemic on the basic assumption that the policy should be to ensure normal life continued as far as possible and that coercion should be avoided. This approach had been endorsed by the scientists. These principles were thrown out in a matter of hours before the first lockdown, with no thought for the immense collateral implications. There was no impact assessment or cost benefit analysis and no thought for the economic or educational consequences. It is a sound principle of government not to make drastic decisions without knowing where you are going.

Are you surprised the majority of UK voters seem to accept the restrictions?

No. As I pointed out in my first Reith Lecture, if people are sufficiently frightened, they will submit to any amount of despotism. Ultimately, the fault is that of politicians. Their first duty is to be calmer and more rational than the majority of their citizens. It is to inform and not manipulate opinion. It is to lead and not to follow. This of course requires a certain political and moral stature, which is currently in short supply. The British public has not even begun to understand the seriousness of what is happening to our country. Many of them, perhaps most, don’t care, and won’t care until it is too late. They instinctively feel the end justifies the means, the motto of every totalitarian government which has ever been.

Why do you think Keir Starmer (a lawyer himself ) and his shadow cabinet haven’t vigorously contested the measures?

Before 1997, the left traditionally believed in a high degree of social control, even in normal times. To some extent it is now reverting to type after the Blair/Brown years. I do not think that Starmer himself believes in a high degree of social control as an object in itself. However, he has a fractious party behind him, which he is trying to revive after its 2019 defeat. He is not therefore in a mood for confronting popular sentiment. Leaders of the Opposition do not have the opportunity to lead public opinion, and do not have to shoulder the responsibility for the collateral damage.

Should social distancing and restricted attendance have been allowed to constrain the House of Commons in the way it has?

Of course not. It has reduced the House of Commons to the status of a radio phone-in programme, at a time when it has higher duties than looking after its members’ health. I can think of nothing more likely to confirm the public’s instinct that the House of Commons is an irrelevance.

You warn in the book the “next few years are likely to see a radical and lasting transformation in the relationship between the state and the citizen.” What consequences do you anticipate?

I think we will come to accept a much higher degree of government control than we have traditionally done, of which governments will take full advantage. We are witnessing the use of democratic power as an instrument of mass coercion. It is only convention and restraint which preserved us from this corrosive process before. Covid-19 has exposed the fragility of the conventions on which the survival of democracy depends.

What will the effect be on democracy as we know it?

A rise in the appeal of Putinesque autocracy has been apparent from polling evidence for a number of years, especially among the young. Covid-19 has given it a considerable boost. There is, I fear, a real danger that after two centuries of responsible government, we will have a nominal democracy, with a less deliberative and consensual style and an authoritarian reality that we will like a great deal less. I should truly like to be proved wrong about this, but I am not optimistic.

We have also interviewed Blue Sandford (a HS2 eco-protestor) for this issue. A barrister who wanted to offer legal advice to tunnelers at Euston was sent away and fined £200 under Covid measures. What do you make of this use of Covid legislation?

I do not know all the facts, but if he was accused of being out of his home without reasonable excuse, I suspect that he falls within the exception in the regulations for work. Canvassing for work is part of his professional role.

How can those of us who are lockdown sceptics best resist the eroding of our historic civil liberties?

In the present state of public opinion, we can do very little. I have done as much as anyone to put the case against what is happening now, both publicly and privately. I may have encouraged those who already agreed with me, but I doubt whether I have had any real influence on anyone else. On both sides of the debate, opinion is too polarised and too emotional to admit of rational discussion.


 

Lord Jonathan Sumption is a British judge and historian. He served as a Justice of the Supreme Court from 2012 to 2018. He is the author of The Sunday Times Bestseller “Trials of the State” (Profile, 2019), and has written several books of Medieval history including “The Age of Pilgrimage”,” The Albigensian Crusade”, and four books on the Hundred Years War, the third of which, “Divided Houses”, won the 2009 Wolfson History Prize.


 

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