From David Vincent in Shrewsbury,UK: Lord Sumption and Civil Liberties

John Stuart Mill

November 9.  Let us join with Lord Sumption in considering Lord Sumption.

The first practising barrister to be appointed to the British Supreme Court, distinguished historian of the Hundred Years’ War, Reith Lecturer, and now leading opponent of the lockdown strategy.  A wearer of power braces, a man with a high regard for both his principles and his intellect.

In his Cambridge Freshfields Lecture of October 27, he denounced the entire political response to the pandemic, which he described as “the most significant interference with personal freedom in the history of our country.” 

The most famous definition of the freedom of the citizen in the modern era was made by John Stuart Mill in On Liberty of 1859:

“The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” 

The notion of “harm to others” has since been much debated, but in 2020 it has a clear and unassailable meaning: the transmission of an infectious disease that will result in the serious illness or death of many thousands of people.  Although they lacked the language of political rights, this was why medieval Venice put incoming travellers into quarantine and why mid-seventeenth London locked plague victims in their own houses.  It is not an attack on the principle of personal freedom, rather a necessary restriction on the harm caused by its unlicensed practice.  As a distinguished former vice chancellor of my acquaintance would say, “it’s not even a question!”

The debate that now needs to take place is not about liberty as an absolute right, but the conditions which should surround its suspension. 

 The first condition is trust in the decision-making process.  It has been argued by Lord Hennessy amongst others that the final fortnight in May, when Johnson failed to make any effort to take the devolved nations with him, then failed to sack Cummings over the non-apology for the flight to Durham, represented a loss of confidence that has never been regained.  Now we are all critical statisticians, interrogating every expert pronouncement, most recently the claim that Britain was on course for 4,000 deaths a day, a figure since reduced to 1,000.  Johnson’s Brexit history of seeking to curtail or suspend Parliamentary scrutiny of his actions does not help here, and it is passing strange that now his fiercest House of Commons critics are those who cheered him on when he illegally prorogued Parliament last year. 

The second condition is tacit consent by the population.  Most legislation affecting significant areas of social behaviour follows rather than creates changes in attitude.  Johnson’s administration waited, perhaps fatally, until it was persuaded that the public was ready for a lockdown before imposing one in late March, and the same applied to the delayed re-introduction.  Sumption says that the government’s actions mean that “in a crisis the police were entitled to do whatever they thought fit, without being unduly concerned about their legal powers.  This is my definition of a police state.”  His ignorance of what a police state actually looks like in twentieth and twenty-first centuries suggests he should confine his historical studies to the medieval period.  In practice the police have neither wanted nor needed to enforce their powers except in extreme circumstances, nor could they if popular sentiment rejected the edicts (see USA passim). 

The third condition is equality of treatment.  As noted in my previous post, ‘Waggons, Carts and Lear Jets’, there is a long history of the wealthy fleeing a pandemic and leaving the government to impose controls on the poor and dispossessed who have been left behind.  The issue is compounded by the wider tendency of a pandemic to expose and exacerbate the effects of personal and household poverty.  There is a constituency for protest on this matter; who better to lead it than an old Etonian famous for his seven-figure income when practising the law.

The final and perhaps most important condition is the repeal of the controls.  After the Second World War, the last time when there was a widespread suspension of civil liberties in the interests of defeating a yet greater danger, most of the restrictions were lifted in 1945, although rationing, and with it identity cards, remained in place for a further nine years.  Conversely a more recent threat to public safety, the 9/11 attack, resulted in a permanent extension of the security state, some of it in plain sight, some not made public until the Snowden revelations in 2013.  The question to be answered in relation to all the current regulations, whether debated by Parliament or not, is whether they will continue beyond the pandemic. 

That’s when Lord Sumption will need to ride forth and save us. 

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