Lord Sumption: the only coherent position is locking down without limit—or not locking down at all

The former Supreme Court justice replies to a recent Prospect piece on liberty, law and the lockdown from Thomas Poole of the LSE

May 26, 2020
Photo: BBC/Richard Ansett
Photo: BBC/Richard Ansett

Professor Poole accuses me of “facile contrarianism” for suggesting that it “is our business, not the state’s, to say what risks we will take with our own health.” The essence of his argument is in his last sentence: “only law can guarantee the social structures that make free life possible.” Of course that is true, and I am not “blind” to the fact.

But it does not follow that all laws are admirable, or that every policy dilemma calls for a legal solution. Nor does it follow from the fact that some legal constraints make free life possible, that they all do. There is something endearingly absurd about the argument that house imprisonment by law is necessary for freedom.

Law is an instrument of state coercion. Unless one believes in the absolute state, coercion must be justified. I do not believe and have never said that liberty is an absolute value. But it is an important value whose partial abolition has not been justified in this case.

I understand the professor to believe that the lockdown is justified because the state has a “cardinal duty to ensure the safety of the public.” Whether that is so must depend on: (i) how serious the threat to public safety is; (ii) whether the lockdown is calculated to reduce or eliminate it; and, (iii) whether the collateral damage done by the lockdown outweighs the alleged benefits. Professor Poole says that most citizens are incompetent to assess the scientific evidence. This looks like a suggestion that we must accept the government’s assessment of these matters.

One difficulty about this is that the problem is only partly scientific. It is mainly political. It is a political question how many additional deaths are serious enough to justify the abrogation of liberty. It is a political question whether the alleged cure is worse than the disease. Whether the moral, physical, cultural and economic harm resulting from the lockdown is worse than the loss of life resulting from the virus is a complex value judgment which we are all entitled to make. The physiological effects of the virus or the lockdown are scientific questions, but the choice between conflicting scientific views about them must be made by politicians.

The truth is that the loss of life resulting from this virus is very small except for people with serious physical vulnerabilities who can isolate themselves voluntarily. The statistics very clearly show this. On the government’s own figures for intensive care capacity and use, the risk of the NHS being unable to cope, while it may once have been serious, is now remote. So risking our own health harms only those who are willing to take the risk. There may well be a case for prudent self-isolation, but there is no case for coercion.

It is not even possible to say that the lockdown is calculated to reduce or eliminate the threat. That is, I grant you, a scientific question. But the government’s position on it is logically incoherent. It accepts that with or without a lockdown Covid-19 will still be with us when it ends. So lockdown just defers the problem, unless either someone discovers an effective vaccine (which may never happen), or else the population acquires immunity in the meantime (which requires exposure to the disease). There are therefore only two coherent positions: indefinite and possibly permanent lockdown, or no lockdown at all.

The Professor says, “salus populi suprema lex.” This quotation from Cicero has been deployed by many apologists for tyranny. Professor Poole quotes the 17th-century philosopher Thomas Hobbes, and seems to be an admirer. Hobbes believed that human societies entirely and irrevocably surrendered liberty to an absolute ruler in exchange for security. I do not know whether the professor believes in absolute government, but that is where his argument leads. The latin tag is nonsense. There are no supreme values in public policy. There are only pros and cons.