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Law in a Time of Crisis by Lord Jonathon Sumption

Not a name that would well-known, or known at all, in Ireland, Lord Sumption, with his title of Lord, is likely to be given short shrift as a credible commentator on the world, on Brexit, on Covid-19, or even the rule of law.  

Titles of peerage tend to induce a guttural reaction in Ireland – viewed with suspicion, and more than little disdain in association with pomposity and ceremony – something we tend to thumb our noses at in this country.

However, Sumption should be taken seriously. He is firstly, a very widely written and learned historian – but more importantly he sat as a Supreme Court judge for seven years in the United Kingdom, thus well placed to comment on all things law – but all things British that come under the purview of the law – which is everything!

Described in his earlier book Trials of the State as ‘brisk, entertaining, brilliant’ by the Sunday Times, this is not far off an apt description of Law in the Time of Crisis. Split into 12 distinct essays, pulled together from various public addresses Lord Sumption has given over the years, the book is certainly brisk, and entertaining to the extent that you might be in agreement with the author, but brilliant is probably a little too hyperbolic for a collection of essays.

Covering topics from the Magna Carta, personal injury claims, all the way through to Brexit and the UK government response to the Covid-19 outbreak, the books moves quick. No essays are too long and the language of the law has been adapted sufficiently for a non-lawyer like myself with no gimlet eye to be able to read through uninterrupted by internet searching for terms.

The last chapter, a slight adaptation of a speech delivered as the Annual Freshfields Law Lecture at Cambridge University in October 2020 that should resonate most with the Irish reader, to read his criticisms of the British government’s drift toward controlling tendencies reflected here in Ireland.

As an opening gambit, Lord Sumption goes straight for the jugular,
“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. For three months it placed everybody under a form of house arrest, qualified only by their right to do a limited number of things approved by ministers. All of this has been authorised by ministerial decree with minimal Parliamentary involvement. It has been the most significant interference with personal freedom in the history of our country. We have never sought to do such a thing before, even in wartime and even when faced with health crises far more serious than this one.”

It could probably be written about the situation here in Ireland over the last 15 months, although Lord Sumption focuses on the structure of Government in the UK that is slightly different to that which we have in Ireland – without a written Constitution.

While it is hard for us in Ireland, with our over-riding Constitution, to appreciate Sumption’s faith in the flexibility of an unwritten constitution articulated in the latter chapters, his approval of how the Parliament restrained the Government’s essential coup over prorogation during the Brexit negotiations provides some evidence for this. This feels a little like faith in the market or the invisible hand – an article of faith but evidenced in practice and history, whereas others prefer written constitutions and declarations of liberty, equality and fraternity even though historically they do not necessarily lead to such rosy outcomes and often have unintended consequences.

Indeed, while prorogation is not possible in Ireland, the unwillingness of government to attend and govern at the Oireachtas, reduced meeting times, delays, absenteeism, all contribute to minimising the parliamentary scrutiny – and associated public scrutiny of the parliamentary process – of legislation pushed through by government.

However, the thread running through the final essay, could very well be written about the Irish situation. He says: “The sheer scale on which the government has sought to govern by decree creating new criminal offences sometimes several times a week on the mere say so of ministers, is in constitutional terms truly breathtaking,” – yet, in Ireland, much was done in the same manner.

He says, that the government had “deliberately stoked up” fear using “the language of impending doom, the daily press conferences, the alarmist projections of mathematical modellers” in order to effectively silence government opposition in the House of Commons so parliament “allowed the Coronavirus Act to be steamrollered through with no real scrutiny”.

The parallels continue as he addresses the approach the police had taken to their newly acquired powers – and also some of their assumed powers, under mixed advisories/comments from government officials. It sounds very familiar.

“The implication was that in a crisis the police were entitled to do whatever they thought fit, without being unduly concerned about their legal powers. That is my definition of a police state.”

While these are the reasoned assessments of a former Supreme Court judge in the UK, similar sentiments expressed in Ireland are ridiculed as reactionary and far-right. Sumption assessed the government’s approach as essentially seeking to evade scrutiny by parliament, ultimately rendering themselves unaccountable for five years.

“Since the people have no institutional mechanism for holding governments to account, other than Parliament, the effect is that ministers are accountable to no one, except once in five years at general elections.”

The parliamentary majority of the 3 party coalition with the imposed party whip contributes to a similar system here. But it is the approach to the so-called ‘emergency legislation’ in the UK and in Ireland that many of the parallels are most concerning. The use of legislation to avoid future parliamentary scrutiny by empowering the government to extend restrictions without going through parliament essentially give government unlimited powers.

Sumption highlights an issue that has been particularly of concern here in Ireland where Ministers and party cadres make statements of authority that are not backed-up by the law, intending to create confusion but also give the impression that health advisories are actually in law. No more evident in this regard was the confusion over whether Mass was banned while at the same time, priests were being threatened with arrest and hefty fines.

“The problems begin with the very first days of the lockdown. In his televised press conference of 23 March, the Prime Minister described his announcement of the lockdown as an “instruction” to the British people. He said that he was “immediately” stopping gatherings of more than two people in public and all social events except funerals. A number of police forces announced within minutes of the broadcast that they would be enforcing this at once. The Health Secretary, Mr. Hancock, made a statement in the House of Commons the next day in which he said: “these measures are not advice; they are rules.” All of this was bluff. Even on the widest view of the legislation, the government had no power to give such orders without making statutory regulations.”

“Over the following weeks the government made a succession of press statements containing what it called “guidance”, which went well beyond anything in the regulations. These statements had no legal status whatever, although this fact was never made clear. The two-meter distancing rule, for example, never had the force of law in England. Many police forces set about enforcing the guidance nonetheless, until the College of Policing issued firm advice to them that they had no business doing so.”

“A special word needs to be said about the remarkable discretionary powers of enforcement conferred on the police. The police received power to enforce the lockdown regulations by giving directions to citizens which it was a criminal offence to disobey. Fixed penalty notices are normally authorised in modest amounts for minor regulatory infractions, parking and the lesser driving offences. The government’s Regulations, however, authorised them for a great variety of newly created offences and sometimes in very large amounts”.

Lord Sumption ends with quite a strong statement, one pertinent today and one similar to that which Mattie McGrath was recently castigated for, trying to outline how seemingly benign but suffocating changes in law and in societal attitudes can facilitate a drift towards the type of state and society that becomes unrecognisable.

“In Britain, the lockdown was followed by a brief period in which the government’s approval ratings were sky-high. This is how freedom dies. When societies lose their liberty, it is not usually because some despot has crushed it under his boot. It is because people 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.”

Lord Sumption could have been talking about Ireland. And the list is longer and worth reading.

Given many – if not all – of these approaches were implemented in Ireland after they were seen to have been effective in the UK, we may as well have remained part of the United Kingdom of Ireland and Great Britain, as we are effectively implementing UK law in all but name.

 


 

David Reynolds

 

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