Lord Sumption is at it again, writing from his place at the high table as one the UK’s top jurists…

And, yes, it’s important to note that I did write “top jurists”. I didn’t write the country’s top epidemiologist, virologist, data modeller, or mathematician. Nor is he an economist, behaviouralist, or even a scientist of any kind. Not to discredit his formidable achievements but he is a former historian who became a lawyer. These details do matter when a person clambers up onto his soapbox and uses the reach of The Sunday Times to question the advice of medical experts.

I think it’s important to frame it like this because so much of what Lord Sumption has been saying in recent weeks has been obscured by his title, his biography, and even the way he appears and sounds. Just my sitting down to write this today gives me slight pause. Who do I think I am questioning the wisdom of Jonathan Philip Chadwick Sumption, Lord Sumption, OBE, PC, FSA, FRHistS?

Yet that’s where we have our first problem. Twitter is alive with people crowing about the man once hailed as the “brain of Britain”, yet it’s difficult to see why. It’s certainly not based on yet another article that reads like something reheated by Peter Hitchens after a mild prose upgrade.

“The lesson of Covid-19 is brutally simple and applies generally to public regulation. Free people make mistakes and willingly take risks.”

So begins the latest sermon but it shouldn’t take a Supreme Court judge to spot that this is more mot than maxim. “Simple”, “public”, “free” are emotive words and the sparse construction of those two short sentences means they pack a punch. That’s his opening. It’s meant to be the foundation for what follows. Such poise. Such confidence. Surely, you sense, he must be right…

Except, from the start, Sumption assumes that will is present in every action we take and that we always have agency. We choose to live our lives the way we do and if that means catching this virus then that is what freedom looks like.

Bold claims but even the ancient Stoics didn’t believe that and given everything we now know about the chemistry of the body and mind, the science of sociological conditioning, and even the role of media, the notion of “free will” is surely suspect. Yet Sumption is talking neither serious philosophy nor science. He is, rather, presenting an assessment of human nature that’s been ripped straight from the libertarian playbook. This is the world where the state continually gets in the way of human choices. There is no determinism in their universe, no social fabric that binds people together in the matters of duty. Just id, agency, will…

But before you agree that this sounds reasonable, perhaps test it against the evidence of your own life. Do you think freedom is measured by our ability to make mistakes? Does stubbing your toe make you think “thank Christ for my freedom!”? Who, other than somebody who chews over Ayn Rand with their morning Cheerios, thinks this even barely resembles life? Doesn’t freedom feel more notional than that and based on some fairly large compromises we implicitly make with the state? Libertarians would, of course, be offended by the idea and would happily misquote Benjamin Franklin to argue that “those who give up liberty for security deserve neither”. Yet citizenship is surely defined by the way we yield freedoms for security and that is always going to be more acute during a pandemic.

Not that we need to get that deep into questions of freedom to test the veracity of the claim. This opening is doubly flawed because it commits the fallacy of “affirming the consequent”. It happens when you make a bad deduction such as football matches kick off with a whistle, so whenever you hear a whistle, there must be a football match.

In this case, Sumption wants you to confuse the whistle with the ball. He is essentially arguing that since free people make mistakes, risk is a condition of our freedom. It’s an odd formulation. Does it mean people in authoritarian regimes aren’t capable of catching COVID-19? Or does it mean that anybody ingesting pool cleaner thinking it will cleanse them of the virus is flying the flag for liberty? You needn’t answer. There is no answer beyond his wish to conflate a highly politicised argument about liberty with the pragmatic actions undertaken by a government seeking to save people’s lives. He might as well claim: free people choose to breathe air so inhaling pollution is a sign of our freedom. Utter nonsense.

“If we hold politicians responsible for everything that goes wrong, they will take away our liberty so that nothing can go wrong. “

Another nice formulation but hardly realistic. We already blame politicians for everything and they, in turn, blame the civil service who then blame the public for voting for the damn government in the first place. That’s the nature of politics. That’s the nature of human nature. And what would the alternative be: if politicians weren’t held responsible for anything, then they’d give us more freedom?

Well, perhaps, but, only if you subscribe to that libertarian position where politicians push the sick out into the wilds so they’re no longer a burden on the state and, boy, won’t they just love that freedom?

It’s here that we do get close to what’s Sumption is presenting. I don’t intend to go through the entire article and point out that it is riddled with some quite glib politicking but I think it’s clear that Sumption’s argument isn’t about COVID-19 but, rather, is another attempt to kick the ball around in the old ideological game of “how small can we shrink the state and still call it a society”. Only, we’re now playing it at the height of a pandemic when we’re too panicked to notice when one side moves the goalposts.

Democracy (as well as our freedoms enshrined within it) always exhibits a tension between the will of the people and the duties of the state. These are perennial questions that are never properly resolved but, rather, are in a constant state of flux. What’s certain, however, is they have no part in a coordinated response to a pandemic. It’s as nonsensical as asking if Scottish Independence would be a good way to eradicate COVID-19 north of the border or wondering if getting rid of the monarchy might save more lives in the South East. Take your pick of whichever political hot potato you wish to dump into the fizzing bathwater of this crisis to make some populist bubbles.

Sumption would no doubt claim that he’s fighting for individual freedoms but isn’t is also notable how these libertarians always favour certain kinds of freedom that just happen to ease the burden of responsibility from the state? It’s akin to Fox News hosts sitting in the safety of their homes calling for patriots to break the quarantine. Never once do they realise that the same appeals for individual freedom could be more easily framed the other way…

I demand the freedom to do what it takes to remain safe from this pandemic!

I demand the right to avoid dangerous workplaces!

I will not be bullied into travelling on public transport!

Our children deserve their freedom to spend time away from the classrooms and safe with their families!

We are not the material of the state but free people!

I think it was former GOP strategist, Rick Wilson, who points out how free marketeers are the least capable of recognising that the market will ultimately determine so much about this pandemic because most people will not choose “death” even if it does come with a free meal at their favourite restaurant. I’d extend the same argument to libertarians. If this is about the rights of freeborn British folk to choose their destiny, why not allow them to make “the mistake” of not catching the virus? At the last time of checking, public support for the restrictions was significantly higher than support for easing them. Of course, though, you don’t get articles in the newspapers by pointing that out…

Little of this, then, is about the practical steps we can take to get us through this crisis, but such is the novel nature of COVID-19. It is the perfect ideological plaything because those it doesn’t affect can claim no part in solving the problem. After all, this isn’t like other diseases where mere abstinence will protect us. The danger of coronavirus is its asymptomatic transmission. We might not even know we have it when we pass it to others and that is as true today as it was all those weeks ago when we all began to shelter-in-place (a much better way of talking about this “lockdown”).

It’s why Sumption’s argument about the ages of those who get infected and the severity has been refuted so many times. Must we repeat the argument that although children don’t suffer the worst of the virus, the fear remains that children can spread it? Schools also contain staff who have families that include vulnerable people. Young people might be “safe”, but they can spread it to families where there are vulnerable people. And “safe” is also such a relative term. We know so little about the virus, its short term as well as its long-term effects. Even with a small percentage of young people vulnerable, it still amounts to a lot of sick and dead children if we allow the virus to run through the community.

Sumption is distracting us, then, when he talks about the individual’s right to make mistakes. In this context, these mistakes aren’t the individual’s to make. COVID-19 is a danger because we are condemned to suffer the consequences of other people’s mistakes. Now ask yourself: does that make us more free or more captive? And whose freedom matters more? The infected or the infectee? Does it, in fact, mean that Sumption is essentially arguing for the right of people to go infect others with a possibly fatal virus? If not, why not?

Again, it’s hard to see what point Sumption is making beyond posturing to an audience that expects this kind of cheerleading from the libertarian right. At one point, he argues that “[t]he NHS is there to protect us, not the other way around.” Another good motto but the truth quotient is questionable. For the National Health Service to exist it requires a “nation” and, indeed, the very statism that Lord Sumption finds so objectionable. It was constructed through public support and continues to exist because we as a society protect it. It is naïve to assume that the NHS is somehow big enough to look after itself. Do we believe that it has the political power to prevent its dismantling by the extreme free marketeers? Is it so perfect that it could cope with any pandemic that Nature might throw at it? Isn’t protecting the system from a surge in patients entirely reasonable?

Yet these are merely distractions before he presents us with the meat of his argument, which is where he falls back on a rhetorical trick that’s all too common…

“How could its unpreparedness possibly justify depriving the entire UK population of its liberty, pushing us into the worst recession since the early 18th century, destroying millions of jobs and hundreds of thousands of businesses, piling up public and private debt on a crippling scale and undermining the education of our children?”

This is the trick played by all these COVID sceptics who would ask the same question in different forms. Has the lockdown saved lives? Was it worth it? Weren’t these people going to die anyway? Was the cure worse than the disease? They are clever questions because to justify our actions we would need to make a comparison between the reality we have and some wholly imagined alternative. It’s farcical when you think about it. In no other walk of life would you ask:

How could you justify ruining the carpet to put out that fire when, as you can see, the house is perfectly fine?

Why did you hurt my child when you pulled her out of the way of a car that eventually missed her?

Why on earth did we go to war with that aggressor who invaded all our neighbours when we could have made a peace that protected our borders?

Contrarians assume that we’re on the worst of all possible timelines and Sumption it no different, offering the unchallenged assumption (no pun intended) that the advice of non-experts – no doubt Peter Hitchens, Brendan O’Neill, or Toby Young — would have led to better outcomes than the advice of government scientists.

How do you disprove something that never happened? Simply declaring that we made a bad choice is no proof that their choice would have been any better. Yet that is exactly what they would demand of us. The only arguments we can make are about the choices before us based on the facts we possess at this moment. And, surely, those are frightening enough.

Perhaps there will come a point when the death toll from COVID-19 will become so great that these arguments will stretch credulity too far. The first UK death from the virus came on 13 March. Just nine weeks and two days later, the total stands at 34,446 deaths, with projections based on ONS adjustments suggesting it is considerably higher. Does anybody have proof that it wouldn’t be significantly worse without the measures that were taken? Can anybody say with certainty that cases won’t start to rise again if we return to normality whilst the virus is still circulating? Perhaps COVID sceptics could at least tell us when they will accept there are too many unnecessary deaths so we know when we have their permission to act. (To save space, I’ve put a bit from here in a footnote on the Spanish Flu.)

And, again, isn’t it notable how so little of what Sumption argues addresses neither the actual scientific challenges posed by this particular virus nor the safe ways we might get the economy moving? Instead, he speaks with such certainty about matters that are broadly contested.

“It is our business, not the state’s, to say what risks we will take with our own health.”

It is the pro-tobacco, sugar, fats, and any-old-crap-a-company-can-stick-in-our-food-so-long-as-they-can-get-away-with-it argument. But, even if it were true, why is he so eager for the state to force people back to work? Why, indeed, does Lord Sumption not defend the rights of the very many who would rather not catch the virus? Is freedom a state of mind?

“Those who do not want to run the risk of being infected can isolate themselves voluntarily. They will be no worse off than they are under the current compulsory regime. The rest of us can then get on with our lives.”

The only concession he makes to those who prefer safety, except it’s hardly a concession. Elsewhere he talks about reopening schools and the economy, without acknowledging how both would involve the state making compulsory demands on a quite different set of people. Perhaps that’s how Sumption would define freedom. This is about his freedom to go out rather than another person’s freedom to stay indoors. Again: it’s freedom for some, not freedom for all…

Indeed, by the end, Sumption seems to have abandoned any semblance of reasoned argument, choosing instead the oldest ploy in the game: appealing to common sense.

“The prime minister told the House of Commons on Monday that his new so-called plan was workable because the British would use their common sense. In that case, why not allow them to do so by leaving the decisions to them?”

Any such appeal is ridiculous otherwise we’d have schools of common sense in every university in the land. “Common sense” is merely the “wisdom of the crowd” in another guise and it is quite clear where that rapidly takes us: to crowds of people dancing the conga down the street. This is another plea to “ignore the experts” at a time when we need experts the most. This also happens to be the most shameless of all his arguments. Here, after all, is an authority in one field not only posing as an authority in an unrelated discipline but decrying the very experts who are best qualified to render a proper judgement. I wonder how he’d feel if Jurgen Klopp, Hilary Mantel, or Renée Zellweger turned up at the High Court to render their verdicts given their being at the top of their respective games.

“It pushed the government into making a decision that mocks our humanity and treats us all as mere tools of government policy.”

But now it’s time for mere hyperbole. With “mocks our humanity” he appears to equate humanity with individual freedom when the word is closer in meaning to the efforts of humans as a collective. The proper way to mock our humanity would surely be to privilege the individual at the expense of our species. A pandemic by its very nature requires the collective effort of humanity to protect individuals. It is not the other way around.

Lastly, he writes:

“The lockdown is now all about protecting politicians’ backs. They are not wicked men, just timid ones, terrified of being blamed for deaths on their watch. But it is a wicked thing that they are doing.”

This is little more than an ad hominem attack on politicians; the kind of bullying rhetoric that has no value beyond its ability to cajole people into making decisions against their better judgement. As for the question of their being “wicked”. That verdict is the only one here that’s perhaps best left to priests or lawyers.

@DavidWaywell

Footnote:

According to the Vaccine Knowledge Project at Oxford, “In the UK it is estimated that an average of 600 people a year die from complications of flu. In some years it is estimated that this can rise to over 10,000 deaths”. Of course, the example that’s always cited by COVID sceptics is the Spanish Flu pandemic of 1918/19, when the UK’s morality was said to be around 228,000.

Here’s why that’s a bad comparison.

The Spanish Flu occurred before we began to understand the nature of viruses. It was in a period before antibiotics and the modern treatments that are now capable of saving lives. The flu ran rife because society did not understand how to control it. They certainly were unable to immunise against it. It’s like comparing modern-day London burning down to the Great Fire of 1666. Then it was inevitable. Now it is unacceptable (as well as unlikely) because we have the technology that goes into fire prevention, protection, and suppression. In other words: we don’t allow COVID-19 to run rampant because we have had some success combatting it.

That is why the numbers are relatively low (though admittedly worse than other countries which deployed more aggressive forms of suppression). We are also fighting it (rather than giving up) because we are relatively certain that a vaccine will become available in a year to eighteen months (the British government are now even suggesting an ambitious 30 million doses by September). Hold on or give in? Believe in science and choose the former. To dismiss it is to accept another metric for success, so often economic but equally likely to be ideological.

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