Law in a Time of Crisis

Jonathan Sumption

Profile Books, 2021.

This is a collection of 12 lectures on a wide range of topics. Lord Sumption is insightful and often controversial. Here is a snapshot of five of the lectures:

2. On Apologising for History

Lord Sumption critiques the modern practice of politicians apologising on behalf of the nation for wrongs done in centuries past. He says that this is not legitimate when the person apologising isn’t the person who did the wrong, and those they are apologising too aren’t the people who had the wrong done to them.

Regarding the pulling down of the statues of slave traders:

“The objection to this rage against the past is essentially the same as the objection to historical apologies. It seeks to remove the memorials of the past because the past did not share the values of the present. This is an irrational and absurd thing to do. What has happened has happened. It will not unhappen however angry we are about it. The wealth that Colston and Cass derived from the slave trade will still be used to pay for the charities that they founded, whether they are named after them or not. […] No sensible person would suggest that the existence of statues honouring their contributions to British life makes us think well of the slave trade today.” P.23.

4. Arcana Imperii: State Secrets through the Ages

Sumption refers to the reduced period of time before which confidential documents may be open to the public in the National Archives, plus the increase in politicians and civil servants publishing their memoirs, and the more frequent leaks of confidential material. The result has been that less confidential material is now put into official documents for fear it will be leaked. This means that we won’t in future have the full picture of what actually happened:

“I consulted a number of recently retired senior civil servants about their practices. […] With one exception, every one of them admitted to having omitted significant information from internal documents, which in earlier times they would have included, and to having communicated it informally instead so that they would not be recorded in writing. One of them remarked that in some departments it was common for politically sensitive matters to be omitted from documentary records and recorded only on marginal notes written on Post-It Notes. These could be removed and binned after the right people had seen them.” P.62.

The implication of his argument is that there should be a stricter confidentiality, so that people can put the full information into documents under the confidence that they will not be leaked. However, my natural tendency is to think that everything should be in the documents, and if they are leaked, so what? If we are doing something that we would be ashamed to see in print, we should change our policy and not do the thing that we are ashamed of.

5. The Disunited Kingdom: England, Ireland and Scotland

Lord Sumption addresses the calls for Scottish independence. He objects to the argument of the Scottish National Party:

“Their position is that Scottish independence is just a matter for the Scots. This view is indefensible. […] the future shape of the United Kingdom is not just a matter for the Scots. It concerns the entire population of the United Kingdom. It is therefore a legitimate concern of the only Parliament that can be said to speak for the whole of the United Kingdom, namely the Westminster Parliament. […] It is […] absurd to suggest that an irreversible decision to sunder Britain in two should be the sole prerogative of the 9 per cent of its population that lives in Scotland. Especially when that 9 per cent excludes the many Scots who live under the auspices of the union in England.” P.94-95.

9. Brexit: A Primer for Foreigners

Sumption did not agree with the 2016 majority vote to leave the European Union:

“I was a remainer because I believed, and still believe, that Britain will be dominated by the European Union whether we belong to it or not. We are geographically part of Europe. Our social values are European. Europe is our largest market. If we are going to be dominated by the European Union anyway, we might as well have a voice in its decisions.” P.182.

Nevertheless, he does not agree with the remainers who argue that those who voted for Brexit had been tricked into doing so by the false claims that it would result in more money for the NHS:

“The clearest evidence that the British were not deceived is that although the economic difficulties of Brexit have become increasingly obvious, opinion about the European Union has hardly shifted since the referendum. […] The British voted to leave the European Union because they wanted to leave the European Union. […] the British never accepted the political dimension of the European project. […] In a democracy, people have to identify themselves with a representative legislature. They need to feel that it is there to speak for them. An international legislature such as the European Parliament can only do that if the people of Europe have a European identity. […] Brexit is not about nationalism. It is about identity.” p. 170-173.

12. Government by Degree: Covid-19 and the British Constitution

His views can be summed up in his opening passage:

“During the Covid-19 pandemic, the British state has exercised coercive powers over its citizens on a scale never previously attempted. It has taken effective legal control, enforced by the police, over the personal lives of the entire population: where they could go, whom they could meet, what they could do even within their own homes. […] All of this has been authorised by ministerial decree with minimal parliamentary involvement. […] I do not doubt the seriousness of the epidemic, but I believe that history will look back on the measures taken to contain it as a monument of collective hysteria and governmental folly.” P.218.

He adds:

government by decree is not only constitutionally objectionable. It is usually bad government. There is a common delusion that authoritarian government is efficient. It does not waste time in argument or debate. Strong men get things done. Historical experience should warn us that this idea is almost always wrong. The concentration of power in a small number of hands and the absence of wider deliberation and scrutiny enables governments to make major decisions on the hoof, without proper forethought, planning or research. Within the government’s own ranks, it promotes loyalty at the expense of wisdom, flattery at the expense of objective advice.” P.236.

The recent examination by the Public Accounts Committee of the billions spent on the Track and Trace system, and the widespread fraud committed in applications to the Government’s rushed Bounce Back Loans scheme, to mitigate the damage to the economy from the lockdown measures, evidence the truth of that warning.

Adrian Vincent

January 2022.