Lord Sumption fears that the pandemic could turn Britain into a police state. Is he right?
Lord Sumption, 2019. (PA Images)
When the leading barrister and the most thoughtful judge of his generation warns us that Britain is on the slippery slope to a police state, we should prick up our ears and listen carefully. Jonathan Sumption is not only a great lawyer but an historian, too, and his warning is based on the long, at times bloody, history of liberty in this country. His 2019 Reith Lectures were a philippic against judicial activism, the tendency of overzealous judges to usurp the role of elected representatives by creating new laws. But he was severe in his criticism of Boris Johnson’s attempted prorogation of Parliament last year, ruled unlawful by the Supreme Court of which he was until recently a member.
And so Lord Sumption’s critique of the conduct of the Derbyshire constabulary as “frankly disgraceful” must be taken seriously. “There is a natural tendency and a strong temptation for the police to lose sight of their real functions and turn themselves from citizens in uniform into glorified school prefects,” he told the BBC.
What has exercised him most is that the police “have been trying to stop people from doing things like travelling to take exercise in the open country — which are not contrary to the regulations — simply because ministers have said that they would prefer us not to”. Walkers in the Peak District have been monitored by drones, police have placed black dye in the “Blue Lagoon” in Buxton to discourage tourists, and a picnic was filmed being broken up as a warning to visitors. Elsewhere in British beauty spots, fixed penalty notices have been issued and roadblocks set up to deter travel deemed unnecessary by the local police.
“This is what a police state is like,” Lord Sumption thundered. “It’s a state in which the Government can issue orders or express preferences with no legal authority and the police will enforce ministers’ wishes.” He is right to remind us that the key point is not whether we agree with the actions of the police, but by what authority they are acting. One does not need to look far to find examples of police states, from Putin’s Russia to Xi Jinping’s China. The rule of law has been the basis of our freedom for centuries and we compromise it at our peril.
Is it possible, though, that Lord Sumption’s fulminations are just a little over the top? The police are not arresting people who do flout the social distancing rules, let alone those who don’t. A police state is not one in which a few civil liberties, such as freedom of movement, are temporarily suspended for the duration of a life-threatening danger, such as a pandemic. It is one in which such liberties do not exist. If the police are indeed behaving in an arbitrary fashion, people may still seek a remedy in the courts. In a police state, the only trials are show trials. Indeed, so long as Lord Sumption can safely denounce ministers and chief constables on the BBC, we can be pretty sure that we are not living in a police state, or anything like it.
No doubt the judge is correct in his analysis of the draconian response to coronavirus: “The pressure on politicians has come from the public.” But that is what happens in a democracy. Hysteria and panic are always a danger to the rule of law, but we are very far from that scenario. In the case of prorogation, the Supreme Court justices decided that the Government was ultra vires because it could not be held to account if Parliament was not sitting. Yet when MPs reconvened at the behest of the court, they did little or nothing. The impression remained that the learned judges had decided to give the Government a bloody nose less for legal reasons than because they disliked its policy — Brexit.
This time, too, Lord Sumption clearly disagrees with the policy, in this case lockdown: “The real question is: is this [coronavirus] serious enough to warrant putting our population into house imprisonment, wrecking our economy for an indefinite period, destroying businesses that honest and hardworking people have taken years to build up?”
Many people will answer “no”, but the overwhelming majority supports the Government. Lord Sumption is entitled to criticise the police, but they are not obviously exceeding their powers merely by observing whether tourists are congregating in contravention of the social distancing regulations, or even to “shame people from using their undoubted right to travel”. Even he concedes that most police forces have been “sensible and moderate”.
When challenged by journalists to respond to Lord Sumption, the Foreign Secretary, Dominic Raab, backed the police “doing a difficult job in unprecedented circumstances”, but added that “there needs to be common sense in the way the [Government’s] guidance is interpreted.” We can all say amen to that. Will Britain turn into a police state? Not while Jonathan Sumption is alive and kicking.
