On 27 Oct 2020 Lord Sumption delivered a Lecture at Cambridge University: "Government by decree - Covid-19 and the Constitution".
The selective policing which targeted Piers Corbyn with a £10,000 fine is discussed in Lord Sumption's lecture warning about the slide of Britain into a totalitarian society.
Historically, fear has always been the most potent instrument of the authoritarian state. This is what we are witnessing today. But the fault is not just in our government. It is in ourselves. Fear provokes strident demands for abrasive action, much of which is unhelpful or damaging. It promotes intolerant conformism. It encourages abuse directed against any one who steps out of line, including many responsible opponents of this government’s measures and some notable scientists who have questioned their empirical basis. These are the authentic ingredients of a totalitarian society.
Full transcript here:
voluntarily surrendered their liberty out of fear of some external threat. Historically, fear has always been the most potent instrument of the authoritarian state. This is what we are witnessing today. But the fault is not just in our government. It is in ourselves. Fear provokes strident demands for abrasive action, much of which is unhelpful or damaging. It promotes intolerant conformism. It encourages abuse directed against any one who steps out of line, including many responsible opponents of this government’s measures and some notable scientists who have questioned their empirical basis. These are the authentic ingredients of a totalitarian society.
So, I regret to say, is the propaganda by which the government has to some extent been able to create its own public opinion. Fear was deliberately stoked up by the government: the language of impending doom; the daily press conferences; the alarmist projections of the mathematical modellers; the manipulative use of selected statistics; the presentation of exceptional tragedies as if they were the normal effects of Covid-19; above all the attempt to suggest that that Covid-19 was an indiscriminate killer, when the truth was that it killed identifiable groups, notably those with serious underlying conditions and the old, who could and arguably should have been sheltered without coercing the entire population. These exaggerations followed naturally from the logic of the measures themselves. They were necessary in order to justify the extreme steps which the government had taken, and to promote compliance. As a strategy, this was completely successful. So successful was it that when the government woke up to the damage it was doing, especially to the economy and the education of children, it found it difficult to reverse course. The public naturally asked themselves what had changed. The honest answer to that question would have been that nothing much had changed. The threat had not been fairly presented in the first place. Other governments, in Germany, in France, in Sweden and elsewhere, addressed their citizens in measured terms, and the level of fear was lower. It is not fair to criticise the government for the mere fact that the death toll in Britain is the second highest in Europe. There are too many factors other than government action which determine the mortality of Covid-19. But it is fair to blame them for the fear which means that Britain seems likely to suffer greater economic damage than almost every other European country.
The ease with which people could be terrorised into surrendering basic freedoms which are fundamental to our existence as social beings came as a shock to me in March 2020. So has much of the subsequent debate. I certainly never expected to hear the word libertarian, which only means a believer in freedom, used as a term of abuse. Perhaps I should have done. For this is not a new problem. Four centuries ago the political theorist Thomas Hobbes formulated his notorious apology for absolute government. The basis of human society, he argued, is that people have no right to be free, for they completely and irrevocably surrender their liberty to an overpowering state in return for security. In an age obsessed with escaping from risk, this has become one of the major issues of our time.
I have criticised the way in which the government has invaded civil liberties with limited Parliamentary scrutiny or none. But of course Parliamentary scrutiny is not enough unless Parliament is to willing to live up to its high constitutional calling. It has to be ready to demand rational explanations of ministerial actions and to and to vote down regulations if they are not forthcoming. There is unfortunately little evidence of this. The public’s fear effectively silenced opposition in the House of Commons. The official opposition did not dare to challenge the government, except to suggest that they should have been even tougher even quicker. Parliament allowed the Coronavirus Act to be steam-rollered through with no real scrutiny. It agreed to go into recess at the critical point in March and April when the need for active scrutiny of government was at its highest. When it returned, it meekly accepted government guidance on social distancing, and submitted to a regime under which only 50 out of the 650 members could be in the Chamber at any one time with up to 120 more participating remotely on screens. This has meant that instead of answering to a raucous and often querulous and difficult assembly, whose packed ranks can test governments with the largest majorities, ministers had an easy ride. The exclusion of most of the House from participating in the core activities for which they had been elected by their constituents, was a most remarkable abdication of the House’s constitutional functions. It has reduced its scrutiny of the government to the status of a radio phone-in program.
However, the basic problem is even more fundamental. Under its standing orders, the House of Commons has no control over its own agenda. Its business is determined by the Leader of the House, a government minister, and by the Speaker. Backbenchers, however numerous, have no say and the official opposition not much more. In this respect the Commons is unlike almost every other legislature in the world. Other legislatures determine their own agenda through bipartisan committees or rules which entitle members with a minimum level of support to move their own business. When, in September, MPs began to kick back against the government’s dictatorial measures, the only way that they could do it was to tack a proviso onto a resolution authorising the continuance of the Coronavirus Act, requiring the government to obtain Parliamentary approval of regulations made under the Public Health Act. The Speaker, probably rightly, ruled this out as an abuse. But it should not have been necessary to resort to devices like this. The standing orders date from another age when there was a shared political culture at Westminster which made space for dissenting views, and a shared respect for the institution of Parliament. The procedures of the House are not fit for a world in which the government seeks to shove MPs into the margins. Speaker Hoyle was surely right to accuse ministers of despising Parliament. But it will take more than schoolmasterly lectures to address the problem. Over the past few decades, the House of Commons has lost much of the prestige and public respect that it once enjoyed. Mr Cox’s strictures against Parliament in September 2019 were outrageous. But Parliament will richly deserve them unless it can rise to the challenge of controlling the most determined attempt by any modern government to rule by decree.
So much for the first lesson of recent events. The second is a variant of Lord Acton’s famous dictum that power corrupts and absolute power corrupts absolutely. Ministers do not readily surrender coercive powers when the need has passed. The Scott Inquiry into the Matrix Churchill scandal, which reported in 1996, drew attention to a broad class of emergency powers which had been conferred on the government at the outset of the Second World War until such time as His Majesty should declare by Order in Council that the war had ended. These had been kept in force by the simple device of ensuring that no such Order in Council was ever placed before His Majesty. They were still being used in the 1970s and 1980s on the footing that the Second World War was still in progress, for purposes quite different from those originally envisaged. Likewise, the powers conferred on ministers and the police by the Terrorism Acts of 2000 and 2006 have been employed not just to combat terrorism but for a variety of other purposes, including the control of peaceful demonstrations, the enlargement of police stop and search powers to deal with ordinary non-terrorist offences, and the freezing of the assets of Icelandic banks for the protection of their UK depositors. It will therefore surprise no one that the present government, having announced on 23 March that the lockdown would last until the NHS was able to cope with peak hospitalisations, should have continued them in May and June after this objective had been achieved. Ministers did this notwithstanding the warning of their scientific advisers in reports submitted to SAGE in February and March that a lockdown could delay infections and deaths but not stop them. Once again, fear persuaded people to accept the surrender of their liberty, even when the lockdown was no longer capable of the objective originally claimed for it. If the government had made its regulations under the Civil Contingencies Act, as it should have done, they would have had to be re-approved by Parliament every 30 days. Even with a relatively supine House of Commons, it is permissible to hope that Parliament would at least have called for a coherent explanation of this pointless and profoundly damaging decision.
The third and last lesson which I want to draw from these events is that 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. Strongmen get things done. Historical experience should warn us that this idea is usually 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. The want of criticism encourages self-confidence, and self-confidence banishes moderation and restraint. Authoritarian rulers sustain themselves in power by appealing to the emotional and the irrational in collective opinion. The present government’s mishandling of Covid-19 exemplifies all of these vices. Whatever one might think about the merits of its decisions, it is impossible to think well of the process which produced them, which can only be described as jerky, clumsy, inconsistent and poorly thought out. There is not, and never has been an exit plan or anything that can be described as a long-term strategy – only a series of expedients. The Public Accounts Committee of the House of Commons reported in July that the lockdown was announced without any kind of cost-benefit analysis or advance planning for its disruptive economic effects. The many relevant social and educational considerations were disregarded in favour of an exclusive concentration on public health issues and only some of those. These are all classic problems of authoritarian government. It is habitually inefficient, destructive, blinkered and ultimately not even popular.
The British public has not even begun to understand the seriousness of what is happening to our country. Many, perhaps most of them don’t care, and won’t care until it is too late. They instinctively feel that the end justifies the means, the motto of every totalitarian government which has ever been. Yet what holds us together as a society is precisely the means by which we do things. It is a common respect for a way of making collective decisions, even if we disagree with the decisions themselves. It is difficult to respect the way in which this government’s decisions have been made. It marks a move to a more authoritarian model of politics which will outlast the present crisis. There is little doubt that for some ministers and their advisers this is a desirable outcome. The next few years is likely to see a radical and lasting transformation of the relationship between the state and the citizen. With it will come an equally fundamental change in our relations with each other, a change characterised by distrust, resentment and mutual hostility. In the nature of things, authoritarian governments fracture the societies which they govern. The use of political power as an instrument of mass coercion is corrosive. It divides and it embitters. In this case, it is aggravated by the sustained assault on social interaction which will sooner or later loosen the glue that helped us to deal with earlier crises. The unequal impact of the government’s measures is eroding any sense of national solidarity. The poor, the inadequately housed, the precariously employed and the socially isolated have suffered most from the government’s. Above all, the young, who are little affected by the disease itself, have been made to bear almost all the burden, in the form of blighted educational opportunities and employment prospects whose effects will last for years. Their resentment of democratic forms, which was already noticeable before the epidemic, is mounting, as recent polls have confirmed.
The government has discovered the power of public fear to let it get its way. It will not forget. Aristotle argued in his Politics that democracy was an inherently defective and unstable form of government. It was, he thought, too easily subverted by demagogues seeking to obtain or keep power by appeals to public emotion and fear. What has saved us from this fate in the two centuries that democracy has subsisted in this country is a tradition of responsible government, based not just on law but on convention, deliberation and restraint, and on the effective exercise of Parliamentary as opposed to executive sovereignty. But like all principles which depend on a shared political culture, this is a fragile tradition. It may now founder after two centuries in which it has served this country well. What will replace it is a nominal democracy, with a less deliberative and consensual style and an authoritarian reality which we will like a great deal less.