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Despotic laws can — even should — be ignored, says Jonathan Sumption

1 May 2021

9:00 AM

1 May 2021

9:00 AM

Law in a Time of Crisis Jonathan Sumption

Profile Books, pp.240, 16.99

Jonathan Sumption has developed ‘many strange habits over the years’, he tells us disarmingly, and one of these is to read the international press. ‘I read the French and German press most days, and sometimes the Italian and Spanish press as well.’

Some might think the retired Supreme Court justice was showing off. But these remarks were addressed to a group of German judges at the end of 2019. His message to them was that the British people might have been wrong to vote for Brexit — but they were not, as reported in the continental press, ‘at best naive and at worst mad’.

That’s good to know. But readers who buy this book hoping to learn about law at a time of crisis may wonder what his reflections on the UK’s attitude to the EU pre-departure have got to do with it. They might feel equally short-changed by a lecture he delivered five years ago on 19th-century legal history. But Sumption is, at heart, a historian and so it should come as no surprise to find that the first five of 12 essays collected in this volume have more to tell us about the past than the present.

Not that there’s anything wrong with digging out lectures you have delivered over the years — sometimes more than once — and lightly editing them before putting them between hard covers (though without an index). It’s something that retired judges often do and Sumption is a better writer than most of them. And he has updated a talk he delivered in 2013 about nationalism in the British Isles with some useful reflections on the prospects of a second independence referendum for Scotland: he argues that secession should be a decision for the UK as a whole.

We then have three chapters about the law. On judicial diversity, everyone will just have to be patient. On no-fault liability for personal injury, reform is impracticable. On the interpretation of contracts — an arcane spat in 2017 with his predecessor Lord Hoffmann — Sumption sees no need to engage with Hoffmann’s 20-page rebuttal a year later (‘let us not go back to the dark ages of word magic’) or even to mention it.

We move on to the constitution. The second of his two lectures on Brexit, delivered in January last year, accurately charts what went wrong but offers little by way of a blueprint for the future. Despite his prediction that victory for Gina Miller in her prorogation challenge would be a ‘very, very long shot’, Sumption clearly thinks his former colleagues were right to find in her favour.

By chapter 11, he is beginning to grapple with current affairs. Unless political parties are reformed so as to diminish the power of their constituency associations, the case for proportional representation may become overwhelming. Supranational organisations are needed to tackle truly global problems, such as climate change. But they are not required for issues that should be decided at national level, such as human rights.

And then some bland responses to the two legal issues on which the government is currently considering reform: judicial review (‘dealing with the problem by legislation will not be straightforward… but there is every prospect that judicial cooperation will be forthcoming if the measures proposed are reasonable’) and the Human Rights Act (‘a lot will depend on what they propose to replace it with’). No sign of a crisis here, then.

So most readers will turn first to Sumption’s final chapter, about the Covid pandemic. His target is not just the government and its decision to exercise ‘coercive powers over its citizens on a scale never previously attempted [and] with minimal parliamentary involvement’. He also blames the public for voluntarily surrendering their liberty ‘out of fear of some external threat’ — and MPs for agreeing to work remotely. Because this chapter was written as a lecture in October, it makes no mention of the government’s successful vaccination programme. His prediction that ‘Britain seems likely to suffer greater economic damage than almost every other European country’ is one he might now reconsider.

But Sumption shies away from justifying his most notorious response to laws he finds unacceptable. Answering a question on assisted suicide after one of his Reith lectures in 2019, he suggested ‘the law should be broken… from time to time’. In an interview last July, he admitted breaking the lockdown regulations. ‘I don’t accept that there is a moral obligation to comply with the law,’ he told me. Interviewed for UnHerd in March he seemed willing to countenance civil disobedience: ‘Sometimes the most public-spirited thing that you can do with despotic laws like these is to ignore them.’

If others followed that advice, there would be a good book to be written about law in a time of crisis. Sadly, it isn’t this one.

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