Lord Sumption is one of Britain's finest legal minds. As a former supreme court judge, he deserves our respect. But he is wrong when he says the lockdown is 'incoherent'.
Sumption argues that the decision to run the risk of catching coronavirus should be down to each person. 'What I'm advocating now is that the lockdown should become entirely voluntary. It is up to us, not the state, to decide what risks we are going to take with our own bodies,' he told the BBC.
Sumption was asked on the BBC how he could know the risk he was posing or running if, sitting in a theatre with no symptoms, he infected others. He said those individuals sitting next to him had every right to take the same risk he did in taking the decision to sit in the theatre. His civil liberties argument is a powerful one and flies in the face of the current thinking about the lockdown. But his view that it should be down to the person, not the state, to decide what risks are and aren't acceptable in this age of coronavirus is misguided.
The risk of exposure to Covid-19 is indeed an individual risk. But it does not follow – as Lord Sumption suggests – that it must be solely in the hands of the individual to decide to take that risk or not. The ‘individual risk’ argument risks underplaying, indeed ignoring, what we may call the ‘societal risk’ argument.
This viewpoints argues that if we leave it in the hands of individuals to decide whether they choose to run the exposure risk, then we run the risk that infection levels will increase to the point where basic supply chains start to break down. This could mean less, or even no food in shops; fewer shop workers; no petrol deliveries; no imports of medicines or food stuffs; key workers like agricultural workers and bus, rail and tube drivers falling sick in great numbers. By this point, of course, the NHS would have been over-run some time ago. This risk to the fabric of society itself then becomes a grave risk to the individuals in it.
This is why Sumption is wrong. Yes, civil liberties are important and they are in tension, sometimes, with the actions of government. Where we put the balance depends on the circumstances. But where there is a clear and present danger to society, civil liberties will need to take a temporary back seat.
In normal times, the interests of the individual will have greater weight against the interests of the state. The weight of the competing interests of state and individual depend on the circumstances. No one seriously argues that civil liberties can trump rules designed to head off a national emergency. The Civil Contingencies Act, for example, contains draconian powers in a state of emergency. The powers are there, if needed.
It is interesting that Lord Sumption argued so cogently and brilliantly in his 2019 Reith Lectures that the law was moving into the realms of politics. Civil liberties are at the very nexus of the tension between law and politics. I wonder when we renamed the Law Lords as the Supreme Court, whether we sent a message to the justices of that court that (like the US Supreme court) that their role was increasingly a political role, not just legal. Sometimes, with the two 'EU' cases of last year, the court has been perhaps dragged unwillingly into the very heart of contentious politics. But that is a far cry from jumping willingly into the political debate.
I worry that Lord Sumption is in danger of breaking the injunction he set out in his Reith Lectures, that law is law and politics is politics. Former justices of the UK Supreme Court must realise they are highly regarded in society and that their views matter. They must realise that they have an awesome responsibility when they express themselves in public. It's time for Sumption to follow his own advice.
Jonathan Compton is a partner at law firm DMH Stallard