However,
this book is about much more than COVID-19. Comprised of 12 chapters, all of
which are updated versions of speeches given over the past few years, it is a
short and readable collection. Incidentally, none of these are based on his
2019 Reith Lectures. The topics covered are wide but all related to law and the
constitution of the United Kingdom and are presented in three sections: 1. History
and the Modern World; 2. Law: Conceptions and Misconceptions; and 3. The
Constitution: Towards an Uncertain Future.
In the
first section he considers the trend towards apologising for our history, the
influence of Magna Carta, state secrets and independence for the four
entities of our increasingly disunited kingdom. In the ‘Historian as judge’,
and Sumption is both, he displays his grasp of both history and the law. He
defends the fact that many judges, according to the journalistic trope, are ‘out
of touch with real life’. What is more, the whole legal profession is out of touch
and how could it be otherwise? The law, or the speciality of the person practising
it, is a finite body of knowledge; ‘real life’ is infinite and impossible to
experience in its entirety. On apologising for history, he draws a distinction
using the Catholic Church’s reasonable apology for historical abuse of young
boys, many of whom and their abusers are still alive, with the issue of Pope
John Paul II apologising for The Crusades which is patently ridiculous. It will
come as a surprise to many, including some on the other side of the Atlantic,
who still display a copy in their National Archives, that Magna Carta is
not as influential on our legal system and constitution as commonly held.
Frankly, it is a bit of a myth. The chapter on state secrets does not give much
away but the chapter on the ‘Disunited Kingdom’ reveals the multiple cases for
independence in the United Kingdom, including for England, to be complex to say
the least. There is little in common between the three cases for independence
for Scotland, Wales and Ireland; the last having been achieved with a few
issues remaining to be resolved. His view on single question referendums, such
as the one that led to Brexit, is that these are not helpful in settling
matters of independence and they completely ignore the consequences.
The most
interesting chapter in the second section on ‘Conceptions and Misconceptions’
about law is the opening one on judicial diversity. Sumption’s view, a
restatement of the blindingly obvious—to which a great many of the quota
mongers seem obviously blind—is that quality simply cannot be sacrificed for
mere representativeness. If the latter prevails, the law will suffer, and
judgements will be poorer. A chapter on personal injury law and the prospect of
abolishing it is an interesting diversion. The case for abolition is based on
the premise that, while the statistics on accidents remain relatively static,
the number of claims rises ‘inexorably’. Moreover, while there is a moral case
for compensation on the grounds of deliberate harm, the same case cannot
necessarily be made regarding accidents caused by negligence. In ‘A Question of
Taste’, Sumption is at his most entertaining with some amusing examples of how
various interpretations of situations can, and do, lead to varying legal
outcomes.
I enjoyed
every chapter of this relatively short and very readable book. But I would pay
the same cover price simply to have the final four chapters collected and
published. I think anyone with an interest in Brexit, the United Kingdom
constitution and COVID-19 should read this section. Sumption is a proclaimed
Remainer yet his ‘Primer for Foreigners’ is one of the most sensitive
treatments of the Brexit issue I have read. The Remainers have many reasons for
wishing to remain and throw many insults at those who voted for Brexit. But
Sumption’s conclusion and lesson for foreigners is that people voted to leave
for the simple reason that they wanted to leave. The potential economic
consequences were not taken into consideration and Sumption, who exemplifies
why, passes no judgement. This is remarkably refreshing and generous. ‘Brexit
and the British Constitution’ is a denser consideration of the parliamentary
and legal proceedings around Brexit. In the process, Sumption pays a tribute to
former Speaker of The House of Commons John Bercow MP on the grounds that he
found a way to prevent some of the potential constitutional abuses of both the
May and Johnson governments. A fascinating chapter on the British Constitution
is very informative. Of course, it is well known that the United Kingdom does
not have a written, codified constitution like many other countries, the United
States being a prime example. Sumption offers a brilliant defence of the
British situation saying that a written constitution deals with yesterday’s
problems and lacks the flexibility to deal with tomorrow’s problems.
The
final chapter on COVID-19 based on a lecture of the same name: ‘Government by
Decree: COVID-19 and the British Constitution’, which is available online, is a
masterpiece. The reaction to and management of the coronavirus pandemic by the
governments and assemblies of the United Kingdom was based on panic, was not
evidence based and does not work. Principally, however, it is an enormous
affront to civil liberties, the greatest ever even in wartime. Lord Jonathan
Sumption has risen to prominence for his outspokenness on the issue of economic
lockdown. This has gained him a following among the lockdown sceptics and,
undoubtedly, opprobrium from the COVID-orthodox. Somehow, I doubt either
reaction is of much interest to the author. Few are so confident in and able to
support their arguments.
Law in a Time of Crisis, Jonathan Sumption,
Profile Books, 2020, £16.99
