‘The defence of liberty is a state of mind’ – interview with Jonathan Sumption, Part I

I met Jonathan Sumption on a wet and windy November afternoon at his house in Blackheath, on the edge of Greenwich Park. We sat in the quiet of a small reception room, a fire glowing in the grate, the walls lined with antique paintings and rows of books. He made me a cup of tea, which I never managed to drink.

Sumption read history at Magdalen College, Oxford, where he taught from 1971-74. In 1975 he was called to the Bar, and started as a tenant at Brick Court two years later. In the early 2010s, outside the legal profession and the rarefied world of medieval history, he was perhaps best known for representing the Russian oligarch Roman Abramovich against Boris Berezovsky, another oligarch who had sued him for £3 billion over a dispute about a subsidiary of Gazprom. The trial judge, Gloster J., found very firmly in Abramovich’s favour; things did not end well for Berezovsky.

In 2012, Sumption was appointed as a Justice of the UK Supreme Court. Most unusually, he did not sit in the High Court and Court of Appeal first. In December 2018, upon reaching the mandatory retirement age of 70, he stepped down, but remained on the Supplementary Panel of judges called in for occasional hearings. In the summer of 2019, however, he notified Baroness Hale, then the court’s president, that he did not intend to sit for the foreseeable future, owing to his public commentary on the constitutional implications of Brexit. In December 2021, he formally resigned. As he stated in an internal email, this was ‘in view of public criticisms which I was making of the government.’

In August 2015, the Guardian published a profile of Sumption by Wendell Steavenson in which he was described as ‘the brain of Britain’ and as ‘a uniquely British object, almost a metonym for the establishment, one of the guardians of a system that has provided the most stable democracy in the world despite never being written into the Constitution.’ In March 2021, the same newspaper published a review of his latest book, Law in a Time of Crisis, by David Runciman, professor of politics at Cambridge. Runciman commented that Sumption had lost his sense of historical perspective and that he sounded ‘more like a sclerotic judge than an urbane historian’.

During the pandemic, as this apparent volte-face by the Guardian suggests, Sumption was a divisive figure. For some, like Runciman, he was a ‘take-no-prisoners lockdown sceptic’; for others, he was a beacon of sanity in a time of collective madness. In a recent interview for the Freethinker, human rights lawyer Adam Wagner argued that Sumption’s response to the lockdowns was irremediably ‘libertarian’ in virtue of his being a ‘privileged, wealthy man’.

Part I of my interview with Sumption focuses on his criticisms of the way the pandemic was viewed and handled by the government, the opposition, the police, the scientific establishment and wider society. He also responds to Wagner. Part II, on Brexit, Sumption’s career as a lawyer, his role as an appellate judge in Hong Kong, and his fascination with medieval history, will be published in the New Year [now available here]. As usual, comments are open below.

~ Emma Park, Editor

There is a clear difference in the way you were portrayed by Wendell Steavenson (2015) and David Runciman (2021) in the Guardian, six years apart [see introduction above]. It seems like a dramatic change, even within the pages of one newspaper.

I do not think either of them necessarily represents the view of the Guardian, so I would discount both quite heavily.

Would you say that, in general, there has been much of a change in the way you have been perceived by the public, or portrayed in the media, between 2015 and now?

No, not very much. I have become well-known for different things over that period. Before I became a judge, and indeed afterwards, I was known for my scepticism about some aspects of human rights culture, and for earning a lot of money at the Bar. Since the lockdown, I have probably been best known as a ‘lockdown sceptic’. There is nothing particularly ‘sclerotic’ about a view that gives liberty a rather higher place in the scheme of things than the government has usually been prepared to allow, and I am completely unashamed of that. The ‘sclerotic judge’ of David Runciman’s imagination is probably the sort of person that rejoices in sending people to prison all the time. I have sought to persuade people that sending the entire population to a qualified version of imprisonment is objectionable.

During the pandemic, do you think that people who were politically left of centre gravitated towards support for lockdowns more readily than they might have done in other circumstances, just because the opposition to lockdowns was led by the right wing? Did lockdowns become yet another rallying point in the culture wars?

It is right that the issue became politicised. I do not think it was because opposition to lockdowns came mainly from the right wing of the Conservative party, because the opposition to lockdowns within the Conservative party did not become apparent until after the Labour party had declared itself. Initially it was the Labour party which politicised it, by becoming the consistent voice for more and longer lockdowns. That is regrettable.

A pandemic does not lend itself to analysis in left and right terms. It is therefore unfortunate that, at an early stage, it became a political issue in which, by and large, people did divide on left and right lines. The classic points of distinction between the left and the right had absolutely nothing to do with either the epidemiology or the other factors that went into the decision.

I am not a right-wing figure. I am unclassifiable politically and have voted for all three national parties in my time. On the political spectrum, I would put myself somewhere in the middle, but I object strongly to portfolio politics. People have often said to me things like, ‘You are against lockdowns, why aren’t you a Brexiter?’ This seems to me to be a perfectly daft question. I see no reason why, simply because a lot of people who agree with me on issue X also have strong views on issue Y, I should believe in issue Y as well. One takes each issue as it comes.

Going back to 2020, what was the original justification for the lockdowns and was this maintained over the course of the pandemic?

The original justification for lockdown represented a considerable change of front by the government, as with many governments in Europe. This was not simply because they had not advocated it before. Ever since the SARS pandemic of 2004, a great deal of preparatory work had gone into planning a response to the next pandemic. By and large there was a consensus among health authorities, both in this country and in Europe, that the principles should be, first of all, that you should not adopt one-size-fits-all solutions but concentrate state interventions on vulnerable categories; and secondly, that you should avoid resort to coercion and treat people like grown-ups. Both of those principles were thrown out the window in a moment of panic, not only in the UK but in other countries.

As to why it happened, what we know about it comes mainly from Dominic Cummings’s remarkable evidence to the Technology Committee at the House of Commons. But what lay behind it were some extravagant modelling exercises, of which the most influential both in this country and in some European countries were those of Professor Neil Ferguson and his team at Imperial College.

There were two basic problems with Professor Ferguson’s calculation. One is that he chose a case mortality rate at the top end of what was then thought to be the range. That has proved to be far too high. I would not blame him for that, because the case mortality rate was a very difficult thing to predict at that relatively early stage of the pandemic.

What I would blame him for is the fact that he made a completely unrealistic comparison. He compared the situation which you would have if you locked down the whole population, barring those who had to keep the wheels moving, with the situation that you would have if people did absolutely nothing to protect themselves. The latter was a completely unrealistic hypothesis. Human beings have a developed sense of self-protection. The idea that nobody would do anything to protect themselves unless they were made to do so by law was frankly absurd.

This prevented the government from making use of one of the most striking features of the Covid pathogen, which is that although it infected people fairly indiscriminately, it was highly discriminating in the categories that became seriously ill or died. If you were under 65 and did not suffer from a number of identifiable conditions, mainly concerned with the respiratory system, your chances of becoming seriously ill or dying were very small indeed. That distinguished Covid from, for example, Spanish flu, which was probably the closest parallel epidemic back in the beginning of the 20th century. Spanish flu had mainly attacked healthy people in their twenties, thirties and forties.

It has occasionally been suggested that I put liberty above all other things. This is not true. Liberty is an extremely important value, but it does not necessarily trump other factors. My concern about the government’s reaction was that they should have adopted a voluntary system coupled with objective and trustworthy advice directed mainly at the vulnerable categories. This would have been easier to do with Covid than it would have been with Spanish flu because the vulnerable categories were, for the most part, economically inactive. If the elderly and those suffering from serious respiratory conditions had been urged to shield themselves, if we had managed the problems about care homes better, we would have achieved a lower death toll from Covid-19 even without coercion. That would have enabled those who were not particularly vulnerable to serious illness or death to get on with their lives and continue in productive work.

Instead of which we spent what the National Audit Office has calculated as £376,000,000,000, of which less than a quarter was spent on improving health facilities – the rest was almost all spent on paying people not to work. So we suffered in three ways: we had less productive capacity; we wrecked the public finances; and we reduced tax revenues so that we eventually had to borrow at a relatively high rate. This was not a healthy state of affairs. We are living with the consequences now.

Even if one approves of the policies themselves, you cannot possibly approve of the method by which these decisions were made. It is clear from statements made by insiders, from Rishi Sunak to other less public sources, that there was no cost-benefit analysis at any stage. At no stage did someone say, ‘How much is this going to cost?’ They did not ask what this was going to mean in terms of children’s lost education, or of other health conditions, mental health, cancer and so on.

It seems to me to be a fundamental rule of government not to make radical decisions affecting an entire population without knowing what the results might be.

Why did they never ask themselves that question?

In the beginning, it was because they were in a panic, and because the decisions were being made by a very small number of people without proper discussion. I also suspect, although this has not been verified, that they thought that if they locked down the population it would be for a shorter time – perhaps six weeks. I do not think they ever envisaged that it would continue on and off for two years. But once they had started, they found themselves compelled to go on. It is extremely difficult, when you have inflicted untold loss and misery on an entire population, to say, ‘On reflection, we have changed our minds because it does not seem such a good idea after all.’

It was the sort of decision where the decision itself commits you to continue. I think they found themselves caught up with the logic of their own arguments and with the results of the fear that they quite deliberately engendered in order to improve compliance with the lockdown.

You might have thought that the tactic of engendering fear was undemocratic and authoritarian.

It is undemocratic because experience shows that you can manipulate people relatively easily if you frighten them enough. We know that this was a deliberate policy because Sage’s minutes show that. Adam Wagner has suggested that I have misunderstood the relevant Sage document. I do not think I have.

The Sage document in question is not concerned with the question, lockdown or no lockdown. What it is saying is some people are not very vulnerable to this pathogen, and those people might not be sufficiently frightened to protect themselves. Therefore what we must do is to frighten them some more. In other words, we must encourage a degree of fear which is not justified by the real vulnerability of those people. That is an undemocratic thing for a government to do. I do not believe that these are wicked people, but they sometimes found themselves driven by the logic of their own decisions to do wicked things. That was certainly one of them.

Adam Wagner and others have argued that shielding the vulnerable but letting others carry on working would not have prevented the virus from spreading through everyone. What is your response to that?

How does he know? The argument seems to be that, if the healthy had been allowed to get on with life, more of them would have got Covid, which is true, and that would have spread to the vulnerable, which is not necessarily true. It would only have happened if the vulnerable had not shielded themselves. That is an implausible hypothesis.

If we had adopted a voluntary policy, we would probably have had a death toll which was maybe slightly in excess of the one that we had. But you have to compare that against the catastrophic collateral damage. At the moment we are seeing death rates of about ten per cent in excess of normal. These are people dying from things other than Covid. The principal victims are cancer and dementia sufferers. Undiagnosed and untreated cancer has been a serious problem as a result of lockdowns, not just in this country, but in nearly every European country. There have been a number of studies that demonstrate that clearly.

The impact on dementia has been very significant indeed. Dementia deaths exceeded Covid deaths for most of the pandemic. Dementia is aggravated by loneliness and a lack of mental stimulation. That seems to be the most likely explanation for a noticeable spike in dementia deaths, which is still continuing. I had an elderly relative whose incipient dementia had been kept at bay by stimulation. During the lockdowns, the lack of stimulation, the end of her bridge clubs, the loneliness, caused a precipitate decline. I know lots of people who can say the same of members of their family.

This is a tragedy. It is a collateral consequence which they never thought about. I think that it would have been worth putting up with a marginally higher rate of illness and death from Covid in order to spare ourselves the catastrophic consequences that we are suffering at the moment. And those are just the consequences for people’s health.

The educational consequences have been appalling. The brighter pupils who are better supported by their families – generally middle class families – will undoubtedly get over it, but the pupils who are more challenged, who come from difficult family backgrounds, will probably never get over it. Their education, their acquisition of social and industrial skills, has been permanently retarded.

In his interview with you, Adam Wagner described me as a ‘privileged, wealthy man’, and I am – as indeed is he. That is why it is important that people like us should be prepared to speak up for the principal victims of the lockdown, to speak up for those who live in crowded accommodation, at the bottom of the income scale, with children in educationally challenged circumstances. The lockdown is generally acknowledged to have aggravated levels of inequality in Britain, which were already high.

And you would say Adam Wagner is in a similar position.

Of course he is in a similar position. I think extremely well of his book. My complaint about it is about the things that it deliberately does not cover. The subtitle is ‘How we lost our freedoms in the pandemic and why it matters’. But he will not say whether it is justified, at least not in his book. He goes a bit further in his interview with you.

If the loss of liberties was justified, then why does it matter? Wagner’s approach devalues the whole issue into a row about procedure. But it is not just a question of procedure: it is much more important than that. The loss of liberty matters unless it is justified. It matters because of the collateral consequences, and because it was simply unnecessary to adopt such extreme and unproven measures.

 I am not a lone voice crying in the wilderness on this. There are plenty of epidemiologists who would say exactly the same. They are not just people, like Sunetra Gupta, who have been unfairly and outrageously abused by some of the scientific establishment.

[In the US, compare Twitter’s deliberate suppression of the views of Jay Bhattacharya, a professor at the Stanford School of Medicine – who also discussed Covid policies with Sumption. – Ed.]

Take The Year the World Went Mad, by Mark Woolhouse – the title tells you what his attitude is. He was on the Sage modelling group SPI-M-O and the Scottish equivalent of Sage. He is Professor of Infectious Disease Epidemiology at Edinburgh University. As time goes on, people are becoming more conscious of the catastrophic collateral consequences of lockdown, and of the significant strand of scientific opinion which was squeezed out of the groupthink of Sage.

When one thinks of science and the scientific method, one thinks about it as being about disagreement, developing theories, and testing them through experimentation, in a continuous process of refinement. But during the pandemic, there was a widespread tendency to assume that ‘following the science’ meant lockdown, and that was that. Was there a failure here?

The basic proposition in science is that all ‘facts’ are provisional, until better researched, better informed or better reasoned hypotheses come to light. There is no such thing as a definitive answer. That is why scientists disagree about many issues, and disagreed about the appropriate response to Covid. There is not simply ‘the science’. There are many different views.

More fundamentally, the government has no business to just ‘follow the science’, because the science is only one relevant factor in an extremely complex decision that involves many non-scientific elements. You have to take into account the educational, economic, financial and social consequences of the restrictions. If you are only looking at one among a number of factors, you are almost certain to make serious mistakes – as indeed they did.

In January 2021 you appeared on the BBC’s Big Questions. You outraged public opinion by telling a woman with cancer that her life was ‘less valuable’ than others’. You also said, ‘All lives are not of equal value – the older you are, the less valuable yours is, because there’s less of it left.’ Could you clarify what you meant by this in the context?

I cocked up on that interview because I was at cross purposes with Deborah James. We were actually talking about slightly different things. It was not my intention to suggest that the lives of some individuals are morally less valuable than others. I made my peace with her but I am sorry about the impression that I unintentionally gave.

I was trying to make a serious point. Governments cannot make policy decisions on the basis of their assessment of the moral value of particular individuals. They have to look at the position as a whole. When you have to decide how resources should be used, and there are not enough to go round, it is basic health economics to try and find some metric by which you can measure and compare the consequences of different policies. The standard way of doing this in most countries is to use what are called ‘quality adjusted life years’ (QALYs). If you have to choose between a policy which protects some people and a policy which protects other people, you need to be able to compare the impact of the two.  ‘Quality adjusted life years’ is a tried and tested way of doing it, which has been at the heart of National Health Service policymaking for decades. That was the point I was trying to make.

If you have a disease that primarily affects people older than 65 – actually, very largely people older than 80 – people who have only relatively few years left, one question that you have to ask is how much damage should you inflict on younger, less vulnerable people in order to shield them. It is a particularly important question to ask if there are other ways of dealing with the problem which help the vulnerable without damaging the rest.

For example, permanently damaging the educational prospects of young children in order to extend the life of people in their eighties is not good policymaking. You have to work out what the impact of what you are doing is on every class of society and make difficult choices.

Do you yourself have any religious beliefs that influence your views about life and death?

I am an un-pious practising Anglican. I do not believe that that has any impact on my views about Covid or any other issue of public policy.

Some have argued that the NHS has become an object of quasi-religious worship in recent years, especially during the pandemic. Would you agree?

Saving the NHS was a good propaganda point for the government. All the banging of pans and the signs on people’s houses indicate that. What has been quite striking is that people are discovering that the NHS is actually very badly managed, that its low levels of morale, although partly due to underfunding, are due to many other much more deep-rooted malaises, and that it needs root-and-branch reform. The tendency to treat it as an alternative to the established church has declined noticeably in the last couple of years. But during the pandemic it did become a totemic thing, which distorted the debate and closed people’s eyes to some important dilemmas.

To what extent would you say that there was a loss of humanity during the pandemic?

The most fundamental characteristic of human beings is their capacity to come together. We are social animals. It is the foundation of our whole civilisation. If you coerce people so as to obstruct interaction between human beings, you are going to dehumanise them. That is why the government’s measures amounted to a sustained assault on our humanity. They attacked the most important thing that makes us better than animals.

From early on in the pandemic, you criticised the police for their abuse of power. What were some of the most egregious examples of that abuse of power?

My first public statement on the point was provoked by the extraordinary behaviour of the Derbyshire Police, who, for some reason I never understood, seemed to have been at the forefront of this. But this mainly happened at the early stages of the pandemic. The government issued enormous quantities of guidance which went a lot further than the regulations. Therefore it is perhaps understandable that people were confused about what exactly was law and what was the government’s advice or request. The position was improved when the College of Policing issued a single page sheet of paper, which basically said what the police could and could not do. They said, you can only enforce the law, you cannot enforce the government’s guidance. Most of them behaved reasonably after the first few months.

Some of the police interventions were outrageous. One Chief Constable threatened to go through people’s shopping baskets to make sure they had not bought something inessential, although food shops were allowed to open for essential and inessential products alike. The police did overreach themselves, mainly in the early period. They should have known better, because the police have legal departments to tell them what the law is.

In December 2018, you reached the retirement age for full-time Supreme Court justices (70), but remained on the court’s supplementary list, which you would be eligible to do until you reach 75. However, you chose to stop hearing cases in 2019, and then resigned altogether in January 2021. What were your reasons for doing so?

I heard an appeal in a shipping case in spring 2019. In the summer of August 2019 I began to comment on the constitutional implications of the parliamentary rows over Brexit. I was due to hear a patent appeal in October, but I wrote to Lady Hale and said, I think I should come off the panel listed to hear that appeal because I had been commenting publicly on things that, although legal, were politically controversial. I asked informally not to be listed for the time being. When it became clear that I had other issues with government policy, I formally resigned from the Supplementary Panel of judges who could be called on to sit. It seemed to me unlikely that there would ever be a time before I was 75 when it would be appropriate to list me.

At that point, did you think it was more important to criticise what the government was doing than to be a judge?

I wanted to be free to comment on the constitutional position of the government on Brexit, and later on the wisdom, or lack of it, of government policy on Covid. Commenting on the constitutional position of the government on Brexit was the sort of thing that a former law lord would have been at liberty to do in the days when law lords were members of the House of Lords. So that was relatively marginal; I was taking an ultra-cautious view.

I think the consensus of judges would have been that ordinarily you should not be as openly critical of government policy as I was on Covid. Broadly speaking, I accept that. But I believe that there are some issues which are so important, not only for the development of current policy, but for the future of our country, that you have to be prepared to stand up and speak about them – especially if nobody else is doing so.

How did it feel to be one of the very few respectable people who spoke up against the lockdowns during the pandemic?

It felt quite lonely, although I received plenty of ‘undercover’ support. I got a large postbag. Many of the letters were from NHS people who firmly supported what I was saying, but said they would not dare to say it themselves because their jobs would be in danger. I got letters from politicians and civil servants saying much the same. In the case of the politicians, I thought this was rather shameful. So I was not as lonely as all that, but it sometimes looked that way.

As far as you are aware, to what extent did members of the Bar support your views about the lockdown?

I do not know. Most of the ones who spoke to me supported my position. But of course people are more likely to speak to me on the subject if they agree than if they disagree. I would not discount the possibility that there was a majority of barristers quietly snarling in corners.

What should the role of the judiciary be in a crisis like the pandemic? And how far did Britain’s judiciary fulfil that role in this case?

I think the judiciary has exactly the same role in a crisis as at any other time. The famous case study is Liversidge v Anderson (1941), about the administrative detention of people whose activities or opinions were thought to be unhelpful to the war effort during the Second World War. The relevant regulations said that the Home Secretary could intern people if he had ‘reasonable cause to believe’ that they were dangerous. The House of Lords said this meant that the Home Secretary could intern people if he thought they were dangerous, whether or not they actually were. This is now widely regarded as craven. There was a famous and much admired dissent by Lord Atkin who said – and this is now orthodoxy – that the laws are exactly the same in peace and in war, in crisis and in non-crisis. He objected to the motto silent leges inter arma (‘the laws are silent amidst the clash of arms’). His position is now regarded as the true one.

Did the judiciary live up to Lord Atkin’s statements during the pandemic? No, I do not think they did. The decision of the Court of Appeal in Dolan (December 2020) was badly reasoned. It is a fundamental constitutional principle that if you are going to have a regulation which authorises breaches of fundamental rights – and there is no doubt that locking people up is a breach of fundamental rights – the regulation has got to spell it out in letters of brass. You cannot rely on general language, because there is too great a risk that the more extreme consequences of that language will have been overlooked by people in the course of the passage of the relevant legislation through Parliament. That is a principle which had led the courts, time out of mind, to strike down Acts which are radical, but justified only by general words. It was a principle that the Court of Appeal shied away from applying when they interpreted the Public Health Act 1984. That was an unfortunate failure.

[See Sumption’s article, ‘Covid-19 and the courts – expediency or law?’ in the Law Quarterly Review; and this article by two law students at Oxford.]

 The Supreme Court compounded the failure by refusing to entertain an appeal [in Dolan]. My own belief is that the reason why they refused to entertain an appeal is that, at the time, there was much muttering in the Conservative government about the possibility of abolishing the Supreme Court, in revenge for having decided the two Miller cases against the government. I think they were afraid that they would inflame anti-Supreme Court tendencies in the government and parts of the press if they were to question what the government was doing about Covid.

The truth was that the government had the power to do what it did, but only under a different statute: not the Public Health Act, but the Civil Contingencies Act 2004. That was important, because the Civil Contingencies Act deals with emergency legislation and allows the government to do that sort of thing, but only subject to tight parliamentary supervision. The government escaped parliamentary supervision by relying on the wrong Act. This is something that is well brought out in Adam Wagner’s book, although he does not go so far as to say that the decision in Dolan was wrong. I think that it was wrong.

[Further discussion of the above Acts in Law in a Time of Crisis, chapter 12.]

The judiciary criticise governmental abuse of power when the occasion justifies it. I do not think they would have been criticised if they had said that the government had used the wrong Act. I do not think that they would have been criticised if they had held that in such fundamental matters the government must submit to democratic control. People would have blamed the government for using the wrong legislation, rather than the courts for pointing the fact out. The courts are more sensitive to the political atmosphere than they admit, but they ought to have come up to the plate when they were tested. They did not. In the event of course it made no difference, because the government’s measures had opposition support, but the principle matters. Oppositions will not always be so cowardly.

What can we as a society do to ensure that future governments will never be able to exercise this type of near-absolute power again?

I think it is unlikely that we will go into another lockdown, even if similar epidemiological conditions arise again. It is too much to expect the government to admit that it was a mistake. It is too much to expect the opposition to admit that their position was a mistake. We are never going to get any humble confessions, but people are now much more conscious that you cannot interfere with the basic mechanisms of society without inviting really serious economic, social and medical consequences. The fact that we are now in the midst of a financial crisis, which would probably have been avoided if we had not bust ourselves on Covid, has been a sobering lesson, as indeed the present Prime Minister pointed out during the pandemic. I think we are likely to be more cautious in future.

The problem is that the defence of liberty is a state of mind. The barriers to despotism are more psychological than legal. It is often said that certain things are unthinkable: that you would not use your power in that way even if you had it. But once you do, then what was previously unthinkable has become thinkable. It is very difficult to row back from that. The psychological barrier has gone, the dam has burst, and the psychological implications for other crises, possibly unconnected with health, will be with us, I fear, for a long time.

One way to resist this psychological lowering of the ‘barriers to despotism’ is presumably to keep on talking about what happened during the pandemic and try to come to terms with it.

That is why I am talking to you. It is always tempting to say, it is over now – let bygones be bygones. But I do not think we should do that. We have to learn lessons from experience. The fact that we are not in mid-crisis now does not mean that we should stop learning.

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