Artillery Row

Why Lord Sumption is wrong about the coronavirus shutdown

Joshua Rozenberg says lockdown measures are a price worth paying

Joshua Rozenberg

The coronavirus restrictions adopted by the government are “intolerable in a free society”, Lord Sumption writes in the Sunday Times. “We have subjected most of the population, young or old, vulnerable or fit, to house imprisonment for an indefinite period. We have set about abolishing human sociability in ways that lead to unimaginable distress.”

Hyperbole may be a useful rhetorical device but it is best avoided when discussing law, science or medicine. The current restrictions are hugely challenging for the elderly people living alone just as they are for parents with young children. But they will be relaxed in a matter of weeks.

We all have to die sooner or later. But, for most of us, later is better than sooner. Every human life is precious

I am writing from Israel — where the restrictions are even greater than in the UK — but I can still go out to buy food and other necessities, just as I can take exercise close to home. This is not house arrest. My wife and I cannot visit family or friends but we use modern forms of communication to maintain sociability. This is painful, particularly at a holiday period, and it but not unimaginably distressing.

It would be more distressing to catch the virus, not knowing how easily one might fight it off. It would be unimaginably distressing to lose a relative or friend who might have been shielded from coronavirus. Sumption’s assertion that Boris Johnson is “fine” was written before the prime minister was taken to hospital but even last week there was evidence that Johnson was far from well.

Shorn of its exaggeration and wishful thinking, Sumption’s piece is a continuation of last week’s debate here on Artillery Row between Toby Young and Sam Bowman, without the benefit of their factual underpinning. We are saddling future generations with high levels of debt, the former judge tells us. “These things kill, too. If all this is the price of saving human life, we have to ask whether it is worth paying.”

I do not seek to minimise the economic cost of fighting the virus. Many people have lost their jobs — or their businesses. All of us will have to shoulder the cost. But, unlike Sumption, I regard this as a price worth paying. I believe that earlier moves to enforce social distancing across the globe would have saved thousands of lives, perhaps hundreds of thousands. He is right to say that some of those people would have died anyway. We all have to die sooner or later. But, for most of us, later is better than sooner. Every human life is precious.

Of course, that’s only my view. You may prefer Sumption’s analysis. He tells us, with all the authority of a distinguished medieval historian, that “Covid-19 is not the Black Death”. But the reason why his views are widely published is to be found at the end of his Sunday Times piece: “Lord Sumption is a former Supreme Court judge.”

It’s worth remembering that although most Supreme Court justices clock up around 20 years’ judicial experience at various levels, Sumption served as a full-time judge for just under seven years. During that period, he never decided disputes between litigants as a trial judge: his work was confined to appeals.

Two months before Sumption joined the Supreme Court, he argued that the courts had “edged towards a concept of fundamental law trumping even parliamentary legislation”. In the BBC Reith lectures he delivered last year, Sumption argued that that courts “have inched their way towards a notion of fundamental law overriding the ordinary processes of political decision making, and these things have inevitably carried them into the realms of legislative and ministerial policy”.

Putting it simply, he thought the judges had overreached themselves. They were taking an “expansive view of the rule of law”. As he saw it, law had become the “continuation of politics by other means”.

In my new book Enemies of the People? I try to demolish these arguments. But my reason for mentioning them now is that Sumption seems much less deferential to ministerial policy and legislative enactments than he appeared to be last year.

“We have given the police powers that, even if they respect the limits, will create an authoritarian pattern of life utterly inconsistent with our traditions,” he writes. “We have resorted to law, which requires exact definition, and banished common sense, which requires judgment.”

Maybe he is right and maybe he is wrong. A lot depends on whether powers granted by parliament to ministers and others are exercised proportionately, as parliament intended. If not, the courts will have every right to intervene: the Coronavirus Act 2020 made no attempt to limit the availability of judicial review.

Sumption concludes by saying that we must all maintain a sense of proportion. He is right; and I hope his words are heeded by those who have been granted extraordinary powers. If these powers are misused, it will be for the judges to intervene.

When they do, the courts will not be overriding the ordinary processes of decision making. They will not be taking an expansive view of the rule of law. The emergency legislation is already more expansive than any of us could have imagined.

Instead, Sumption’s former colleagues will be trying to restore the sense of proportion that, in his view, the politicians are losing. In the end, we must all rely on the judges to get it right.

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