Lord Sumption (Photo by Laura Dodsworth)

Where is Parliament?

If MPs cannot curb rule by decree, then they have little constitutional relevance

Artillery Row

This is a transcript of a speech made by Lord Sumption on 2 November in a Zoom meeting between MPs, scientists and other experts. It has been reproduced here by kind permission.

I am not a scientist. But I firmly believe that every citizen has a right and duty to understand the science. I also consider that when scientists differ, as they do on Covid-19, a sceptical lay public comes into its own.

Across Europe, governments have adopted a variety of different policies, but the ones which have retained the confidence of their people have been those who treated them as adults, set out an intelligible plan from the outset, explained it in moderate terms and stuck to it. Our government’s record on all of these points has been poor. We need rational thought, and not panic flight from uncomfortable facts. We need a sense of proportion, and an ability to learn from our experience of a problem which has been with humanity for as long as humanity has existed. Above all, we need strategic thought which looks to the long term, and not just a series of expedients in response to the latest pressures. The government’s biggest failure of communication has been the lack of an exit plan. We cannot just go on running away from a virus when the reality is that it cannot be suppressed and we are going to have to live with it. The government must either accept that reality and explain how we are going to manage it long term, or give us an exit plan. To date, it has done neither.

The victims of lockdowns are the poor, the badly housed and the precariously employed

The closest historical parallel for Covid 19 is Spanish flu, which spread across Europe and North America between 1918 and 1921. Spanish flu was less infectious than Covid-19 but a good deal more mortal. However, the major difference between the two epidemics was that Spanish flu mainly attacked fit and healthy people in their 20s and 30s, whereas Covid-19 mainly attacks the old and people with serious underlying clinical conditions. A rational government would make use of this fact, which ought to make Covid-19 much easier to deal with.

The average age at which people die with Covid-19 is 82.4, which is close to the average age at which people die of anything else. The risk of death for people under 65 is tiny. As the charts produced by Professor Whitty at Saturday’s Downing Street press conference show, it is not the young who are filling NHS beds. It is overwhelmingly those aged over 65. A rational policy would protect the old and vulnerable, not the young and relatively invulnerable.

It is no answer to that to say that if infection spreads through the under 65s, they may transmit it to the over 65s. That can be limited, first, by the proper management of care homes and, secondly, by the old and vulnerable isolating themselves if they wish to. They will be no worse off than they are going to be under a compulsory lockdown. Some of them would no doubt prefer to take the risk and enjoy their remaining years. If so, that is a choice which they are morally entitled to make. They should not be deprived of the choice by ministers in Whitehall.

What is clear is that these are the people that we should be protecting from infection. Yet ministers insist on treating the entire population as an undifferentiated mass. No justification has ever been advanced for this irrational and, to my mind, immoral, policy.

If you want to take away people’s right to make their own decisions you need convincing evidence

The justification now advanced for the latest lockdown is substantially the same as for the first, namely to save the NHS from being overwhelmed. I regret to say that there is a serious question of trust here. After six months of relentless propaganda of this kind, I do not believe them. If the NHS is really threatened, then there are serious questions to be asked about what the government has been doing since April to build up NHS capacity, given that it was told at the outset that when it lifted the lockdown the disease would return, possibly stronger. The government has declined to disclose the studies behind their predictions, but on the face of it some of them are absurd. The prediction of up to 4,000 deaths a day is the kind of thing that brings government communications into disrepute. No country has hit such a rate. 4,000 deaths per day is three times higher than peak death tolls in India whose lockdown policies have collapsed and which has a population 20 times the size of ours. According to the July document from SAGE leaked to The Spectator, SAGE is working on a case fatality rate of 0.7%. So 4,000 deaths per day equates to about 4 million new cases per week. These are Noddyland numbers. They are designed to frighten, not to inform.

During the first lockdown, the peak of hospitalisations was on 11 April, when Covid patients were receiving top priority in the allocation of NHS acute beds but only 42% of them were occupied by patients. Since then the Nightingale hospitals have become available and we are told by the Prime Minister that there are 13,000 additional nurses. Moreover, the pattern of infections has changed. The rise in infections is being driven younger people, who are not going to become seriously ill, let alone die and are unlikely to need hospital treatment. The government is relying on statistical models which have a consistent record of exaggeration and are based on arbitrary and unexplained “worst case” assumptions.

But there is a more fundamental problem about the use that is being made of these models, which has been pointed out in their reports by the modellers themselves. Modelling provides a conceptual framework for decision-making. Models are not evidence and they are not forecasts. If you want to take away people’s right to make their own decisions about their health in the light of their own circumstances, you need convincing evidence, and you need to share it.

The cost of this approach is extremely high. I am not just talking about the financial cost, although that is vast, and seems likely to hang like a financial ball and chain round our public finances for many years. I am talking mainly about the social cost. The victims of lockdowns are the poor, the badly housed and the precariously employed. They are children living in penury and insecurity. They are couples falling apart amid the pressures of confinement and the threat of violence. They are people struggling with loneliness and mental illness. There are millions of them. My GP tells me that she saw more cases of self-harm among adolescents in the last 6 weeks of the lockdown than in the whole of 2018 and 2019 put together. She has had to prescribe more antidepressants to people in their 20s than ever before. One of her patients, who lived in a upper floor flat without a garden, was moved on three times by the police when she tried to sit in the sun outside her front door. She was 87 years old. Measures like these kill. Poverty kills. Depression kills Loneliness kills. Insecurity kills. And when they do not kill, they maim. The consequences will be felt for years.

The prediction of up to 4000 deaths a day brings government communications into disrepute

Above all, lockdowns inflict an appalling injustice on the younger generation, people entering the job market whose prospects are being snuffed out. The spectacle of bright engineering graduates and talented musicians, forced to abandon their skills to stack shelves at supermarkets is a savage indictment of current policies.

Trying to hide from the Covid virus involves suppressing some basic features of our humanity: our sociability, our need for cooperative work, and our emotional dependence on interchange with other humans. These things are not some kind of optional extra which we can learn to do without, like drinking alcohol in Lent or doing without sugar in your tea. The whole of our world is built on human sociability. It is what distinguishes life from mere existence.

There are good reasons to believe that our continent will have to face further threats at least as serious as Covid-19 more often in future. Europe and North America have had it easy for the last 70 years, because they have not been hit by the epidemics which have been an accepted feature of live in other parts of the world. We have to devise an approach to epidemic diseases which works time and again. We cannot keep running away, or defy the forces of nature indefinitely. We cannot suspend the ordinary currents of human life every time it happens. We have to learn to live with as our ancestors have done for many centuries. In his press conference, the Prime Minister said that we have to be “humble in the face of nature”. I see no sign of that humility in the policies that he then proceeded to outline.

I should like to turn to a second major issue for you as Parliamentarians, namely the role of Parliament itself. I think that this is a critical moment in Parliament’s history. Representative institutions have lost public respect in much of the world over the past 30 years, and especially in this country. The successive surveys of political engagement by the Hansard Society paint a consistent and dismal picture. In April 2019, they published a survey suggesting that a majority of population would welcome rule by a Putinesque strongman, and most of those thought that the strongman should not be unduly troubled by such impedimenta as Parliament.

In my lecture at Cambridge last week, I sought to trace the various ways in which the government has sought to escape Parliamentary scrutiny over Covid-19. The main problem is the government’s use of the Public Health (Control of Disease) Act 1984, instead of the Civil Contingencies Act 2004. The Civil Contingencies Act is the only statute which contemplates government by emergency decree of the kind that we have experienced since March. It was tailor-made for this kind of crisis. Parliament recognised the dangers of government by decree and was prepared to authorise it only on the footing that the process was subject to strict Parliamentary scrutiny. Critical features of the scheme of the Civil Contingencies Act are that if the regulations are too urgent to be submitted to Parliament for approval in advance, they will have provisional validity for 7 days, subject to Parliamentary approval within that period. Crucially, the Civil Contingencies Act provides for continuing Parliamentary supervision after the regulations have been approved. They expire after 30 days, unless renewed and reapproved. Moreover, they can be amended in either House, and may be rejected by Pt at any time, whereas Public Health Act regulations remain in force for as long as ministers choose.

Parliament should refuse to approve any further regulations under Public Health Act

I think that Parliament should refuse to approve any further regulations under Public Health Act, and say that they should be resubmitted under the Civil Contingencies Act. Whatever one’s opinion about the new lockdown, it is impossible to defend the absence of proper Parliamentary scrutiny in a Parliamentary democracy. I suspect that the appetite for rejecting regulations under either Act may be limited. But the advantage of this scheme is that ministers would have to come before the House at regular intervals with a coherent explanation, backed by evidence. What the last 6 months have shown is that decisions made in cabinet cabals, without wider deliberation or exacting Parliamentary involvement are likely to be less well through out, less coherent, and more impulsive.

I have no doubt that a desire to minimise Parliamentary scrutiny has been a deliberate policy, and not just a welcome accident. I set out my reasons for thinking that in my Cambridge lecture. What seems clear is that if Parliament cannot rise to the challenge of curbing the most determined attempt in modern times to rule by executive decree, then I seriously question whether it can claim any real constitutional relevance.

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