Jonathan Sumption: a response to my critics on lockdown

Jonathan Compton criticises my views on lockdown on two grounds. First, I suggested that it is up to us to decide what risks to run with our own bodies, not the state, and that those who did not want to run the risk of meeting infected persons could voluntarily self-isolate. For this, I am accused of ignoring the ‘societal risk’ that infection levels will rise to the point where supply chains break down, the NHS is overwhelmed and the fabric of society is at risk. Secondly, he says that my views, even if correct, should not be expressed by a former senior judge.

I recognise the first argument in principle, but those who put it forward as a justification for locking everyone up must surely offer some plausible reason for supposing that these extreme consequences will happen. Neither the government nor Mr Compton has done so. Mr Compton’s case is engagingly free of facts. The government’s case is full of facts which undermine it.

There is no evidence of a risk of societal breakdown, even if one takes Professor Ferguson’s disease modelling at face value. Spanish flu is estimated to have had an infection mortality rate two to three times higher than Covid-19 and to have killed around 200,000 people between 1918 and 1921, in a UK population two thirds its current size. Although it mainly attacked fit, economically active young people in their twenties and thirties, it came nowhere near to imperilling supply chains or provoking societal breakdown. Covid-19 attacks people with severe pre-existing vulnerabilities. Nearly nine tenths of the dead were aged 65 or over and likely to have been retired. The number of work days lost through non-mortal illness are fewer by far than days lost through the lockdown. At present, the real risk of societal breakdown comes from the lockdown, not the virus.

Spanish flu may have overwhelmed medical facilities (the evidence is anecdotal and inconsistent) but the limited facilities and primitive state of medical science then are in no way comparable to the present. Current medical science is vastly more effective and our spare capacity is high (at the peak on 11 April only half the UK’s ICU capacity was required for Covid-19 patients and capacity has grown substantially since then). The government has dropped ‘Save the NHS’ from its slogan for good reason.

Turning to Mr Compton’s other point, there are two principles involved. First, judges should not make judicial decisions which properly belong to the world of politics. Second, they should not identify themselves with politically controversial positions which may undermine the perceived objectivity of their judicial decisions. Neither consideration is relevant to a former judge who is no longer making judicial decisions.

I accept that one reason why people listen to me is that I was once a Supreme Court Judge. But that is because judges, like other lawyers, are trained to analyse complex technical facts objectively, especially in areas where expert opinion conflicts, as it does with Covid-19. I have spent my whole professional life doing that.

Personally, I would have preferred the argument against coercion to be advanced by MPs. But they have not dared to speak out, although a fair number have told me privately that they agree with me. Somebody has to speak up for rationality, objectivity, and a sense of proportion, and for the millions whom the lockdown is propelling into utter misery and ruin. It is a sad reflection on the current hysteria that it should have to be me.