This is how reason dies

Does Lord Sumption even understand what freedom actually means?

By Melanie Phillips,

Lord Sumption

The retired British supreme court judge, Lord Sumption, enjoys the reputation of a galactic intellect. He is also known for his outspoken opposition to the coronavirus restrictions. Back in May, he dismissed the threat to the population from the virus, in remarks which I criticised in my Times column (£), on the grounds that almost all who had died from it were “very old” and that “the overwhelming majority of them would have died a bit later, but not much later”. Lockdown, he said, should be a matter of free choice. Even potential virus carriers should feel no obligation to restrict their activities; instead, those who were frightened of the virus should stay at home.

On Tuesday evening, Sumption returned to the attack when he delivered the Cambridge Freshfields Annual Law Lecture, entitled Government by decree: Covid-19 and the Constitution. You can read the whole thing here.

His lecture has predictably been hailed as brilliant by those who believe that the lethality of Covid-19 has been deliberately exaggerated by a government leaping at the opportunity to seize control of people’s lives, take away their freedom and destroy their jobs, mental health and the entire economy — an apparently psychopathological lust for tyranny and political and national self-destruction which, by some remarkable congruence, it happens currently to share with the governments of other democracies and indeed much of the rest of the world.

There’s much that could be said about Sumption’s grasp of the epidemiological realities of Covid-19 and about his attitude towards those who have died from it; towards the rising numbers who are still dying from it or who are seriously ill with it in hospital; towards those who are vulnerable not just to the risk of it killing them but to the serious and long-lasting damage to brain and body that we now know afflicts an alarming proportion of even young sufferers; and towards the desperate if flawed attempts to minimise those numbers and prevent them from escalating out of control. “I do not doubt the seriousness of the epidemic,” he says in his lecture. Well, that’s nice to know.

But let’s park all that for another day. Let’s just look here at the assertions he makes about Britain now adopting the “authentic ingredients of a totalitarian society”. Totalitarianism means not just a dictatorial regime but complete subservience to the state, dictating all aspects of individual life through coercion and repression including the way people speak and think. Yet Sumption pins “totalitarian” on the virus-related restrictions and “propaganda” imposed by Boris Johnson’s government and which, he asserts, will be judged by history as “a monument of collective hysteria and governmental folly”.

He says the unprecedented “coercive powers” that the state has taken through such restrictions have been “authorised by ministerial decree with minimal parliamentary involvement”.

But as he himself notes, these powers rested on two statutes — the Coronavirus Act, which was passed in one day as the March lockdown was announced, and the 1984 Public Health Act, amended in 2008. These powers were enforced through regulations or “delegated legislation”.

It’s certainly reasonable to criticise the way in which both the Coronavirus Act and the subsequent slew of regulations were introduced without adequate parliamentary scrutiny. Nevertheless, it remains the case that parliament passed the laws which gave ministers the power to make these regulations.

One can condemn this lack of adequate scrutiny as unsatisfactory or even highly undesirable. But it was the product of panic and chaos; at worst, the fear that MPs might delay or derail measures deemed vital to tackle the crisis immediately. Reprehensible, maybe — but to claim this as evidence of a lurch into some kind of totalitarian dictatorship is absurd.

It was always open to parliament to insist on greater accountability to itself. MPs mostly chose not to do so. When they did raise a protest, and the Speaker of the Commons tore into ministers for treating parliament with contempt, such ministers adjusted their behaviour. Dictators aren’t constrained by parliaments. They dispose of them.

Moreover, there’s a glaring contradiction in this part of Sumption’s argument. He states:

The most draconian of the government’s interventions with the most far-reaching economic and social effects have been imposed under an Act which does not appear to authorise them. The sheer scale on which the government has sought to govern by decree, creating new criminal offences, sometimes several times a week on the mere say-so of ministers, is in constitutional terms truly breathtaking.

But a crime is only a crime if there is a law which makes it a crime. No law, no crime. So either the claim is that the government passed laws which made new criminal offences, or that it made statements which misled people into thinking there were such laws when they didn’t exist. Yet Sumption has simultaneously claimed both — adducing this as evidence of creeping tyranny. It’s reasonable to criticise the government for having misled the public or been guilty of bad faith by having implied that its “guidance” or “rules” were enforceable by law when they were not. But the government couldn’t have been tyrannically imposing new criminal offences by decree if it hadn’t actually created them.

As if sensing precisely this objection, he then shifts tack by arguing that the police took coercive measures against the public in ways that went far beyond the regulations:

The police substantially exceeded even the vast powers that they received. In the period immediately after the announcement of the lockdown, a number of Chief Constables announced that they would stop people acting in a way which the regarded as inessential, although there was no warrant for this in the regulations.

Maybe the police did exceed the powers they had been given. But assuming that this was so, it was surely evidence of the police being incompetent, panicky or over-zealous — hardly the first time such a thing has occurred.

Instead, however, Sumption claims:

The implication was that in a crisis the police were entitled to do whatever they thought fit, without being unduly concerned about their legal powers. That is my definition of a police state.

Well, that may be his definition but it is wrong. A police state is not where the police act beyond the powers they have been given. It is where a regime rules through orders it gives the police to enforce its own diktats, in the absence of any independent judiciary or democratic rule of law. Claiming that Britain has become a “police state” is not only absurd but devalues the true eclipse of fundamental human rights in actual police states around the world.

He then goes onto make some quite extraordinary assertions. He states:

In Britain, the lockdown was followed by a brief period in which the government’s approval ratings were sky-high. This is how freedom dies. When societies lose their liberty, it is not usually because some despot has crushed it under his boot. It is because people voluntarily surrendered their liberty out of fear of some external threat.

What?! Did the Chinese, or North Koreans, or Iranians, or any other people suffering under tyrannical regimes “voluntarily surrender their liberty out of fear of some external threat”? Did the Russians voluntarily surrender freedom to the Bolsheviks, Lenin or Stalin? Doesn’t freedom generally die because tyrants bludgeon their way to power, or because (as in Nazi Germany) the public actually endorse aspects of their ideology or believe the utopian promises they make?

There’s all the difference in the world between the democratic government of a free society curbing behaviour as a short term expedient because that is indeed the only way to defeat an external threat to the nation, and a despotic regime setting out to control the people by trampling their human rights.

In the Second World War, Britons accepted curbs on their liberties because they understood the government’s purpose was to defend their free society, and that in such an emergency this could only be achieved through such curbs. Indeed, has there ever been a genuinely free society which has been destroyed because the people have “voluntarily surrendered their liberty out of fear of some external threat”?

Sumption observes that certain powers conferred upon the government at the outset of the Second World War were still being used in the 1970s and 1980s for quite different purposes; similarly, powers under the Terrorism Acts of 2000 and 2006 have been have been employed not just to combat terrorism but for a variety of other situations. This kind of “coercion creep” is certainly a danger. But the fact remains that it is always open to parliament to stop it, if MPs so wish. That is not true of a dictatorship, let alone a totalitarian society.

He then goes on to make the preposterous claim that Boris Johnson’s government has deliberately stoked up fear of the virus

… to justify the extreme steps which the government had taken, and to promote compliance. … Other governments, in Germany, in France, in Sweden and elsewhere, addressed their citizens in measured terms, and the level of fear was lower.

This is to ignore the fact that if fear has risen in Britain, it’s in large measure because the public has understandably decided that the government is behaving erratically and incompetently, that its rules are contradictory and make no sense and that it has thus lost control of the emergency. The public did not think that during the March lockdown when the instructions — whether or not they were actually backed by law — were clear, consistent and seemed appropriate.

Sumption also dismisses the fact that people nay be frightened of the virus itself, and even want the government to take tougher measures against it, because of the independent conclusions about it that they have reached. Given what we now know about its possible ill-effects upon a wide range of people, such fear is understandable, rational and blindingly obvious. Yet Sumption accuses the government of stoking public terror, implying that it actually wants to shut down normal life and inflict appalling damage on the economy. This is nothing other than paranoid conspiracy theory.

And then finally, after accusing the government of lurching into despotism and blaming parliament for allowing it to do so, he decides the British public is responsible for destroying the country. He says:

The British public has not even begun to understand the seriousness of what is happening to our country. Many, perhaps most of them don’t care, and won’t care until it is too late. They instinctively feel that the end justifies the means, the motto of every totalitarian government which has ever been.

In other words, the public are apparently too stupid and morally deficient to understand or care about the important things that Sumption understands and cares about.

What an extraordinary slander against the British people. What monumental arrogance. What incomprehensible myopia, as Europe becomes convulsed by rising rates of Covid-19 infections and morbidity and as France, Germany and Spain are forced to impose draconian lockdowns.

Heaven knows, there are enough grounds to criticise Boris Johnson’s government for its handling of the coronavirus crisis, including its approach to parliament and its absence of transparency about the powers it has taken and the policies it has pursued. But to claim that it is lurching into totalitarianism and that “this is how freedom dies” suggests rather that Lord Sumption doesn’t understand what freedom actually is.