Lord Sumption in the bear-pit

We interview the former Supreme Court Justice on life in the lockdown years

How much longer would restrictions have lasted in the UK without the powerful contribution Jonathan Sumption made to the debate? Over the past two years, he has dissected and exposed the many shortcomings of Covid legislation and lockdowns fearlessly, bringing the same razor-sharp analysis to the debate for which he was known as a Justice of the Supreme Court. Unable to match his intellectual rigour, the advocates of lockdowns in the media attacked him viciously, which may have cowed others but never intimidated him. I remember vividly his brilliant speech at the launch meeting of Recovery and the impact he made alongside Emma Kenny at the Recovery Parliamentary meeting with Steve Baker MP after which the Covid Recovery Group was formed. It was a privilege to interview him last month about how he now views the pandemic and the lessons we can learn. 

FITTINGLY, it’s a sunny March day, full of the promise of early Spring when I make my way to meet Lord Sumption at his house in Greenwich. Daffodils are blooming, early insects are on the wing, and there’s hope in the air. We sit drinking fresh mint tea in a comfortable study lined from floor to ceiling with books. I’m grateful for his time as he is keen to finish the fifth and final volume of his celebrated account of the Hundred Years War: volume III, ‘Divided Houses’, won the Wolfson History prize in 2010. 

As well as what we can learn from the pandemic years, I want to know how the harsh criticism he faced affected him personally. Those who spoke against lockdowns were shocked by the vitriolic response to what seemed to them mainstream, common-sense arguments. Many were silenced by the brutal attacks they experienced online and in the media; others lost their jobs or contracts for expressing their doubt over the restrictions. 

At times, it felt as though there was a deliberate campaign to ensure the public never understood the radical lockdown measures were the antithesis of the best-practice policies agreed by western Governments prior to 2020, or heard the extreme pandemic measures fairly debated. 

Lord Sumption was one of the few who never wavered in his public opposition to lockdowns, even when he was hounded by the BBC and in the press for making the apparently uncontroversial statement that we should consider quality-adjusted life years (QALYs) when making decisions over pandemic policy. QALYs are the metric which is recommended by the National Institute for Clinical Excellence and used routinely by the NHS to measure the value of medical interventions. 

Wilfully misinterpreting his comments, the Independent thundered, ‘Jonathan Sumption has completely misunderstood what makes a life valuable’. The empty-headed vituperators who populate so much of the media gleefully formed a lynch mob. Melanie Phillips in The Times said, ‘Who is Lord Sumption to decide the worth of a life?’ On GMB, Piers Morgan tried to trick him with what he falsely claimed was a ‘hypothetical question’ which he then revealed was about Captain Sir Tom Moore, the 98-year-old who won fame during the pandemic by walking round his garden to raise money for the NHS (ironically, Morgan followed this by praising the success of ‘draconian lockdowns’ in China, during which people like Sir Tom were forbidden to walk outside). 

Devi Shridhar even argued that, “the reason we’re in this third lockdown is because of the anti-lockdowners like Lord Sumption” who, she claimed, say that “some lives are worth less than others” even though as a health adviser to the Sottish Government, she should have understood and used QALYs routinely herself.  None of his critics correctly represented his arguments, preferring to throw mud at a straw man they themselves had erected. How did it affect him? 

“If you descend into the bear pit, you must expect to get scratched,” he says, making clear he would do the same again. Despite the media frenzy, he received little personal abuse. He was inundated with emails and letters, but the majority were supportive and those who disagreed mostly made “reasoned criticisms, which were not unwelcome.”

For all the sound and fury, the essential point he was making about QALYs has still not been addressed. “QALYs are the standard metric worldwide for assessing the effectiveness and viability of health measures,” he says. “There’s never been an attempt to look at the QALYs toll.”  

For me, this should be an essential demand for any covid inquiry. Can we hope for this kind of rigorous, independent analysis? He is reluctant to say much about his expectations, since the Inquiry is headed by a personal friend.

It is certainly true, however, that few broadcasters and journalists asked tough questions like these of SAGE and the Government. Did the media fail us at a crucial time? 

Despite his own experience, Lord Sumption is inclined to place the blame elsewhere. He sees the role of the Government and its messaging as far more significant and disturbing, especially in its “deliberately manipulative” use of fear and the freedom given to SAGE’s behavioural psychologists to play on the public’s emotions. 

“They gave the impression that the rare and outlying cases of people under 70 dying were the norm,” he points out. “That was a lie and they knew it was a lie, which is unforgiveable.”

He points to Sweden as an example of how the communication could and should have been handled. 

“With the right Government messaging, public opinion will accept a different approach. Anders Tegnell [Sweden’s state epidemiologist] did an extraordinarily good job of explaining the situation and maintaining public support for a much more reasoned approach.” 

“There were no mask mandates in Sweden, they never closed their schools and though there were some more balanced measures around social distancing, they also kept restaurants and bars open.” Public education and a comparatively minimal set of measures “made enough difference to control the virus and protect the vulnerable.” Sweden ultimately fared better than countries like the UK and suffered far less economic damage, much of which was the result of lockdowns elsewhere, since Sweden has an export-driven economy.

He dismisses the traditional riposte from supporters of lockdowns that Denmark and Finland fared better than Sweden as ‘just a piece of evasion’ which overlooks important differences. For example, both countries had been badly hit by a flu epidemic immediately prior to 2020, which would naturally lower the number of people likely to be vulnerable to respiratory viruses. 

He is more confident than I am that these arguments have now been won, arguing that, “politically, lockdowns are dead.” He has little time for the way their advocates make their case, arguing they choose “an entirely arbitrary selection of facts to support their argument.”  

He also questions the widespread assumption that all excess death was caused by Covid-19 during the pandemic years, pointing out measures such as lockdowns had huge implications for the other major killer diseases in the UK. 

There were many warnings that we would see a rise in deaths from cancer and other diseases because of the massive disruption to treatment, the abandonment of screening programmes, the restrictions on hospital care, and the impact on mental health, with many people too afraid to visit hospitals even in emergencies. 

“Dementia is the biggest killer in the UK and yet the Government never considered the impact of lockdowns. If you isolate people, you increase depression and dementia.” However, excess deaths have been attributed to Covid-19 alone – partly as the Government ‘played fast and loose with the certification requirements’ and made special arrangements for care homes. 

Furthermore, systematic testing was only carried out throughout much of the pandemic in hospitals, which were the most likely environment in which to catch the virus and also, of course, to find people already close to death. Mortality that would previously have been recorded as due to dementia or other causes therefore may instead have been attributed to Covid-19 caught in hospital. My own pPersonal experience suggests this did happen. 

He sees many lessons to be learned from the pandemic, though clearly without huge optimism that the right conclusions will be drawn. As the author of several books on the dividing line between Government and the Courts, he has a keen sense of both the limits that a good Government should place on its actions and the risks inherent in our unwritten constitution. 

“A psychological barrier has been crossed, which is dangerous,” he warns. “The Government adopted radical measures without knowing what the consequences would be. Governments have and need extensive powers to deal with crisis situations, but they are given on the basis that they are not used except in necessity. Constitutionally, many limits are imposed on Government not by law, but by convention. Once you smash through them, they are gone. We depend on extreme powers being used very sparingly.”

As he points out, this was a panic reaction that flew in the face of all the planning and was made possible by an unfortunate combination of personalities at the head of Government. 

“People said that this is a terrible virus and therefore we must do something, even though what we did was almost certainly wrong. It’s actually a highly selective virus.

“Pre-Covid, plans were made for an extremely serious pandemic, which rested on two planks: ‘treat the public like adults’ and ‘concentrate on the vulnerable’.” This approach was actually easier to do with Covid-19 than the anticipated influenza, but it was “jettisoned overnight”. No cost/benefit analysis was carried out for the new approach until well over a year later. Even then, it was forced on the Government by Conversative MPs led by the Covid Recovery Group and amounted to little more than a token exercise. It was clearly a major failing for the Government to make such a dramatic change in policy without attempting to assess the damage it might do. 

“The Government went into this with its eyes closed. I don’t think any sensible person can commend that as a way of proceeding.”    

How did it happen? He points to an unfortunate mixture of personalities in key roles. Professor Neil Ferguson had spent years telling the Government it needed to take extreme action in response to potential viral threats, with unfortunate consequences following when it listened, as in the 2001 Foot and Mouth epidemic. Sumption quotes the shocking line from Ferguson’s 2020 Times interview, where he reveals how he and colleagues on SAGE drew inspiration from the extreme Chinese lockdowns,  

“It’s a communist one-party state, we said. We couldn’t get away with it in Europe, we thought. Then Italy did it. And we realised we could.” 

“You can get away with many things you shouldn’t do,” he says. “There are good reasons why we don’t do them. We have moral standards. Once Governments behave like this, a Rubicon is crossed.”   

Alongside Ferguson were Chris Whitty and Patrick Vallance, who paid no regard to anything except the epidemiological criteria – much of it, of course, provided by Professor Ferguson. They were supported in Government by Dominic Cummings, who Sumption says “clearly doesn’t believe in liberal values of any kind.”

Between them, they could easily manipulate Boris Johnson, since he has “a complete inability to look at detail. Unless you are capable of studying a problem like this in detail, you’re never going to stand up to the experts.”  

He finds it telling that even last Christmas, the Prime Minister would have locked down if the Cabinet hadn’t stopped him – he believes at least three ministers would have resigned if a lockdown had gone ahead. If the Cabinet had been given a stronger say earlier, he’s convinced lockdowns would have ended sooner and indeed, the first lockdown in Spring 2020 would have been the last.

It points to a wider problem. “The Prime Minister is too powerful in Government and has been for many years for many reasons. I do not think we should have a presidential system. The more consultative a decision is, the more likely we are to consider all the factors. Sofa Government leads to poorer decision-making.”    

Equally, the decision to allow the different health jurisdictions of the UK to all make their own pandemic policy was unnecessary and misguided. “The UK Government has a right to legislate for Scotland, Wales and Northern Ireland. There’s a convention that it won’t, but no law to that effect. It made no sense to allow the different countries of the UK to pursue different policies.” 

Sadly, we will be living with the consequences of these bad decisions for many years. We can already see in our rapidly rising inflation and the cost-of-living crisis that there will be great pain to come for many households. But much else is unknown.  How much damage has been done to our younger generations?  What will be the toll on their mental health, or their education, or their ability to socialise easily with others? As Sumption points out, the arguments about lockdown were never just about the economy. The restrictions have done great harm to public health. 

“We are poorer not as a result of covid, but as a result of lockdowns. No country ever improved its public health outcomes by making itself poorer.”

Despite all this, since this interview, Boris Johnson has refused to rule out using lockdowns again, whether for a new variant or some other as yet unknown situation. I remember Sumption’s comment that “a Rubicon is crossed.”

On its further side, we find ourselves in a new and more dangerous land. Yet as I leave, the sky is still a cloudless blue and full of promise of better times to come. I hope the coming Inquiry thinks as he does, and Lord Sumption’s warnings are heeded.  

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Photo of Lord Sumption at home courtesy of the Brownstone Institute blog.