Over the past year, his unabashed criticism of lockdown policies has turned him into something of a renegade. It is a development that mystifies him; as he sees it, his views have always been mainstream liberal, and it is the world around that has changed.

In the course of our conversation, the retired judge doesn’t hold back. He asserts that it is becoming morally acceptable to ignore Covid regulations, and even warns that a campaign of “civil disobedience” has already begun.

You can read what he really thinks below. And watch our interaction on Lockdown TV — it was a fascinating conversation.

Podcast version:

On civil disobedience:

“Sometimes the most public spirited thing that you can do with despotic laws like these is to ignore them. I think that if the government persists long enough with locking people down, depending on the severity of the lockdown, civil disobedience is likely to be the result. It will be discrete civil disobedience in the classic English way — I don’t think that we are likely to go onto the streets waving banners. I think we will just calmly decide that we are not going to pay any attention to this. There are some things you have to pay attention to: you can’t go to a shop if it’s closed. On the other hand, you can invite friends round for a drink, whatever Mr Hancock says. People are doing that to some extent already.

“Everyone will have their own different threshold. But I think that in the eyes of many people who disapprove of the lockdown, and some people who approve of it, we’ve reached that point quite a long time ago.”

On the ethics of law-breaking:

“I feel sad that we have the kind of laws which public-spirited people may need to break. I have always taken a line on this, which is probably different from that of most of my former colleagues. I do not believe that there is a moral obligation to obey the law… You have to have a high degree of respect, both for the object that the law is trying to achieve, and for the way that it’s been achieved. Some laws invite breach. I think this is one of them.”

On sacrificing civil liberties:

“[Thomas] Hobbes believed in the absolute state — it didn’t have to be a monarchy, but it had to be absolute. He said that there was nothing short of the state actually killing people that the state should not be entitled to do. He was not, let us say, a believer in liberty. This is because of his experience of the anarchy which flowed from the civil war in England. Hobbes believed that we resign our freedoms unconditionally and permanently into the hands of the state, in return for security. Now, this is a model which ever since the rise of a recognisable form of modern Liberalism in the middle of the 19th century, has been almost universally rejected. But we have tended to revert to it during the current crisis. And I think that that is a very striking and very sinister development.

On the dangers of public fear:

“John Stuart Mill regarded public sentiment and public fear as the principal threat to a liberal democracy. The tendency would be for it to influence policies in a way that whittles away the island within which we are entitled to control our lives to next to nothing. That’s what he regarded as the big danger. It didn’t happen in his own lifetime; it has happened in many countries in the 20th century, and it’s happening in Britain now.”

On the fragility of democracy:

“Democracy is inherently fragile. We have an idea that it’s a very robust system. But democracies have existed for about 150 years. In this country, I think you could say that they existed from the second half of the of the 19th century — they are not the norm. Democracies were regarded in ancient times as inherently self-destructive ways of government. Because, said Aristotle, democracies naturally turn themselves into tyranny. Because the populace will always be a sucker for a demagogue who will turn himself into an absolute ruler…

“Now, it is quite remarkable that Aristotle’s gloomy predictions about the fate of democracies have been falsified by the experience of the West ever since the beginning of democracy. And I think one needs to ask why that is. In my view, the reason is this: Aristotle was basically right about the tendencies, but we have managed to avoid it by a shared political culture of restraint. And this culture of restraint, which because it depends on the collective mentality of our societies, is extremely fragile, quite easy to destroy and extremely difficult to recreate.”

On being a liberal:

“I regard myself as a liberal with a small L. Until the Covid outbreak, that was a very middle of the road position to be in. Since the outbreak, it’s become controversial, even in some people’s minds extreme. This is, I think, some indication of how far our national conversation has moved.”

On what the Government should learn:

“My first proposal is that governments should not treat information as a tool for manipulating public behaviour. They should be calmer than the majority of their citizens; they should be completely objective. My second lesson would be that governments dealing with scientific issues should not allow themselves to be influenced by a single caucus of scientists. They should always test what they are being told in a way that, for instance, judges test expert opinion by producing a counter expert, and working out which set of views stacks up best.”

On his critics:

“I would very much have preferred the kind of points that I have been consistently making for the last year to have been made by just about anybody else. Those colleagues or former colleagues who disapprove of what I’ve been doing have got a perfectly good point. But there are some issues which are so central to the dilemmas of our time, which are so important, where I think that you have to be prepared to stand up and be counted.

To understand why she felt the urge to report this to me, you would need to know that she lives in the most somnolent of villages in rural East Anglia, comprised of little more than a few houses and the odd farm. She was certain that it was the first time in a decade she’d seen a police car anywhere about the place.

Though we can’t be certain, the chances are that the local constabulary had dispatched its frontline officers to roam around sleepy villages like hers to ensure the denizens — in this case, many of them retired and elderly — were not contravening the Government’s orders by venturing outside without good cause.

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Can they really arrest you for walking the dog?

By Adam King

If you have picked up a newspaper or switched on the TV in recent days, you will have seen this type of spectacle being played out in various ways across the country. Hit squads of police officers have descended on high streets and parks, set up checkpoints on main roads and even taken to patrolling beaches in the hunt for transgressors. In some cases, they have been handing out summonses like confetti. Some forces have even established online portals, through which individuals can report fellow citizens who might not be following the rules. Less ‘Blitz Spirit’, more a Stasi-style neighbourhood informers’ network.

Empowered — or, in some cases, wrongly assuming they were empowered — by new legislation in the form of the Coronavirus Act, the police are suddenly everywhere. It’s rather amazing, isn’t it? After years of telling the public that there just weren’t enough resources to satisfy its demand for more bobbies on the beat, our streets are suddenly flooded with them. Like a child who has received a skateboard from Santa, the police just couldn’t wait to go outside and test out their shiny new toy.

Some may wonder why the police’s zeal for getting out into the community in search of offenders — who may be taking a crafty second stroll one day or placing a non-essential Easter egg in their shopping basket — cannot be replicated when it comes to, say, investigating burglaries or cracking down on the anti-social behaviour and general day-to-day lawlessness that blights so many of our communities.

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Who will stand by the workers?

By Paul Embery

I must stress that this isn’t meant as an attack on individual police officers, most of whom carry out their duties sensibly and diligently. It is, though, a comment on the priorities of police chiefs who, backed by their masters in local and central government, downgrade — and divert resources from investigating — everyday crimes which cause considerable personal and private distress, but always seem willing to throw everything at satisfying a particular political demand. The sad truth is that when they are really needed, the police are too frequently not around.

Some of the well-documented recent incidents — such as the use of a drone by Derbyshire Police to shame members of the public — may well be seen as being at the extreme end of the spectrum and unrepresentative of wider police activity. And so they may be. Moreover, a call from the National Police Chiefs’ Council for more restraint by officers may result in fewer such aberrations henceforth. However, this is about something more than the disproportionate actions of a handful of overly-enthusiastic officers. There are, in fact, some fundamental questions here which go to the heart of how much value our society places on our hard-won freedoms and liberties, and it is astonishing, even taking into account the current fearful atmosphere, that more people are not asking them.

Are we content, for example, that our parliament nodded through, with the minimum of scrutiny and opposition, an Act which grants to ministers and police the most sweeping and draconian powers held by them in peacetime — and then, having done so, promptly shut itself down? What evidence is there that this trading of our liberties to such a drastic degree will in the end prove to have been worth it? How can we be certain that these powers will be relinquished when the pandemic is over or that, once the precedent is set, they will not be used in the future for any reason the government of the day sees fit? Governments are rarely keen to surrender powers which they have previously arrogated to themselves.

And, crucially, should the police have any role at all in enforcing what, in some cases, seem merely to be the general preferences of government rather than anything actually enshrined in the legislation itself? For example, the legislation does not prohibit members of the public from getting in their cars and driving to a convenient location for exercise — the government merely advises us not to do it — yet some police forces are acting as though it does.

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Coronavirus will change nothing

By Ben Gummer

One might have expected the ranks of the Left — many of whom have described this government as ‘far-Right’ and just a few months ago were banging on about a ‘coup’ — to have been in the forefront of any opposition to this curtailment of our freedoms. But, no. As is often the case, many on the Left have become the loudest cheerleaders for the new constraints on our liberties. It rarely takes much for their inner-authoritarian to reveal itself.

Notwithstanding people’s anxieties and the widespread desire to protect lives, a society that asks no questions while politicians push through this type of far-reaching legislation — effectively placing the whole population under a form of house arrest — and then stands and watches as some police forces apply a wide and unsparing interpretation of it, may be storing up all manner of problems for itself.

That’s why we should listen carefully when someone like the distinguished former Supreme Court judge Lord Sumption expresses his concern. Much has been made in the media of Sumption’s condemnation of Derbyshire Police over the drone affair. But it was his wider warning against the surrender of our civil liberties that should resonate with us most. Speaking on Radio 4’s ‘The World at One’, he said:

“When human societies lose their freedom, it’s not usually because tyrants have taken it away; it’s usually because people willingly surrender their freedom in return for protection against some external threat… The pressure on politicians has come from the public. They want action. They don’t pause to ask whether the action will work… And anyone who has studied history will recognise here the classic symptoms of collective hysteria. We are working ourselves up into a lather in which we exaggerate the threat and stop asking ourselves whether the cure might be worse than the disease… This is how societies become despotisms.”

In truth, I don’t know whether the threat is exaggerated in the way Lord Sumption suggests. For my part, I am following the Government’s advice in all matters. But there are some things I do know.

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The town that should shame our politicians

By Paul Embery

I know, for example, that other eminent and informed voices — including the likes of Dr John Ioannidis of Stanford University, retired professor of pathology Dr John Lee and Professor Sucharit Bhakdi of the University of Mainz — have raised profound concerns over the strategies employed by Western governments in their management of the pandemic. So Lord Sumption may be on to something.

I know that it is especially vital at times of mass conformism that we create a space in the debate for those with alternative opinions — especially when, like the aforementioned, they are experts in their field — and challenge any attempt to silence them.

I know that, such are the implications of the new legislation, it should not have been enacted, as it was, without the most intense and rigorous scrutiny. And we had better be on our guard for as long as these new laws are extant.

And I know, too, that on every single occasion the police abuse their powers in the name of the legislation, every citizen who believes in liberty and the rule of law has a duty to protest in the most vociferous terms.

Numinous objects of piety and reverence, rights carry an authority no moral or political argument can match. As a result, questions in ethics and politics to which in the past there could be a variety of reasonable responses are now seen as having only one correct answer. If you find that answer unsatisfactory, you are not just disagreeing with other people. You are rejecting an imperative from which dissent is not permitted.

The position of rights is particularly incongruous in this country. More than in any other modern state, Britain’s constitution consists of precedents and conventions arising from historic political settlements. There is no body of rights codified in law that can constrain the sovereignty of parliament, while parliament itself is governed by precedent and accepted procedures.

The European Convention of Human Rights was incorporated into UK law in the Human Rights Act of 1998, and since then, the judges of what has become Britain’s Supreme Court can determine whether the rights recognised in the Convention are being respected by governments and legislators. But authority and legitimacy still reside in parliament rather than in any judicial body, and the ultimate determinant in any major public issue remains a political decision, not a legal interpretation.

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Liberalism: the other God that failed

By John Gray

A situation in which major issues are resolved through the compromises of politics is intolerable to contemporary liberal thinkers. For them, law is a repository of moral truth, which can be determined beyond reasonable doubt. Disagreement on basic moral issues is evidence of error, which law should correct. If you think like this, British institutions are fundamentally defective.

So it is that there are continuous demands from legal scholars and journalistic commentators that our constitutional arrangements be overhauled so that human rights can constrain what any government can do. In this way, Britain can approach the higher rationality that is evident in countries such as the US, where law has a far greater role in the political process.

Jonathan Sumption’s Reith lectures on “Law and the Decline of Politics” present a considered response to these demands. His argument throughout is that inflating human rights beyond a baseline guaranteeing individual security and freedoms of expression and association imposes too great a burden on law, and leads to a dangerous shrinkage in political participation. Effectively, law is usurping politics:

“The problem about the legal model is that it marginalises the political process. When a judge identifies something as a constitutional, or a human, or a fundamental right, he is saying that it derives from a higher law than the ordinary decision-making processes of the state. He is declaring that its existence and extent are not to be determined by political choice. Yet, very many judicial decisions about fundamental rights are themselves political choices only made by a smaller and unrepresentative body of people.”

Here, Sumption captures the chief failing of the prevailing doctrine of rights. Politics is not constrained but confined to a small body of people. Judges are assumed to be able to provide answers to questions that the political processes of a democratic state are unfit to decide. Over time, the range of these questions has expanded to the point that practically every public issue is framed in terms of rights. More and more issues are taken to law, while ever fewer are settled by public political choice. As the empire of rights expands, politics shrivels away.

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The oppressive individualism of human rights

By Giles Fraser

There is more wisdom in Sumption’s five short lectures than could be gleaned from reading innumerable volumes of political and legal philosophy that have appeared in recent decades. Listening to them, I was reminded of an academic seminar I attended some 30 years ago. It was addressed by one of the leading lights of American jurisprudence. During the discussion that followed the paper, the speaker was asked how people with HIV/AIDS should be treated. Without a moment’s hesitation, he replied: “They should be accorded the full protection of their rights under the constitution.”

While sympathising with the speaker’s concern for the wellbeing of people with HIV/AIDS, I could not help noting a certain absurdity in his response. The seminar was taking place in Oxford, and there were no embedded rights in the British constitution at the time. His response made sense only if he was invoking the American constitution (as he interpreted it) and took for granted that its authority was universal. None of the other participants questioned this assumption or gave any sign of finding it strange. I left shortly afterwards.

At that point in the late Eighties, an American discourse of rights had already displaced the British liberal tradition embodied in the work of John Stuart Mill. It tends to be forgotten that Mill is not a theorist of rights. It is true that his celebrated principle of liberty, which forbids curbing individual liberty except when harm to others may be done, stakes out a protected zone of individual freedom. But the scope of that zone is not determined by rights. It is identified by a calculus of utility, the results of which will vary according to changing circumstances.

What is forbidden in one place or time many not be prohibited in others. It may make sense to legalise drugs if the harm done by drug use is mainly to small numbers of drug users. If the number of drug users is large and there are harmful effects on society at large, the calculus may point to other policies. The background to Mill’s liberalism is not a supreme court interpreting human rights but a body like the House of Commons (where Mill himself served as an MP for some years), which frames and amends legislation in the light of its changing impact on general welfare.

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An absence of ethics is driving our mass anxieties

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As an attempt to revive this British tradition, Sumption’s lectures make a pivotal contribution to public discourse. We need reminding that the empire of rights is recent and comes with large costs. Whether Sumption’s argument will be heeded is doubtful, however. The hollowing out of politics that has occurred, along with the expansion of rights, is hardly inadvertent. It reflects the anti-political liberalism that is in vogue in English-speaking countries.

As formulated by John Rawls and Ronald Dworkin among others, American liberal legalism understands politics as a sphere of collective decision-making containing only what is left over once the demands of justice and rights have been met. The marginalisation of politics is the principal objective of the new liberalism that has come to power over the past generation.

Of course, politics cannot actually be eradicated from the judicial process. It is clearly visible in the appointment of American Supreme Court judges. Bret Kavanagh was appointed in a hideously embarrassing spectacle of naked and crude political partisanship. But politics is pervasive throughout the judicial process. When competing interpretations of rights are being adjudicated, what is being decided is which among a range of rival political outlooks will prevail.

Jurisprudential disputes between ‘originalists’ who aim to stick to what the constitution was intended to mean, and others who want the freedom to apply its principles in new conditions, are political conflicts pursued by legal means. The underlying questions have to do not with law but the proper functions of government. Theories of rights cannot offer an escape from politics because they are themselves political ideologies.

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What's so illiberal about debating abortion?

By Ruth Dudley Edwards

At times, Sumption seems to hark back to a time when law was less politicised because more scope was allowed to democratic choice. But law is inevitably shaped in some degree by prevailing political ideas, and today it cannot avoid the formative influence of the ruling version of liberalism. In his first lecture, Sumption observes that ours is “a censorious age”, the product of “growing moral and social absolutism which looks to produce conformity”, not unlike the stifling climate in Victorian England after the Evangelical Movement transformed the lax sensibilities of Georgian times.

But he fails to note how liberalism has mutated from being a philosophy of tolerance that allows individuals and communities with different values to live together peaceably, to one that aims to enforce what are judged to be the correct values on everybody. Along with the practice of public shaming and ostracism, the proliferation of rights is one of the central strategies adopted to achieve this end.

The result is a culture of conformity in some ways more repressive than that of Victorian times. John Stuart Mill may have complained bitterly against the tyranny of public opinion, but what he had to contend with was chiefly unpleasant gossip about his irregular friendship with Harriet Taylor. He was not threatened in his career or livelihood, whereas dissidents from today’s orthodoxies may face being driven from both.

The censoriousness of rights-based cultures today is not accidental. The inflation of rights endangers not only democracy but also personal freedom, for it de-legitimates what was once an accepted diversity of moral viewpoints. If only one view of a contentious issue — abortion, say — is judged to be in accord with human rights, all other views are not only mistaken, but criminal. My own views are strongly pro-choice. But where societies are deeply divided it is worth seeking a compromise, never fixed or final, which most people can live with, and on this basis a liberal abortion regime has been achieved in many countries. If the US remains polarised on this and other issues, one reason is that they have been framed in terms of rights.

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Liberal individualism is killing the planet

By James Bloodworth

An over-extended empire of rights comes with a number of disadvantages. It hollows out democracy by removing ever more issues from public political choice. It imperils personal freedom by criminalising what used to be legitimate moral differences and polarises society by turning those differences into conflicts that cannot be settled by reasonable compromise. In all of these ways, the empire of rights has the effect of undermining social acceptance of liberal values.

But the illiberal empire of rights has another and more fundamental disadvantage. It is inherently unstable. There are many ways of understanding populism, but one that seems plausible to me is that it is a reaction against an attempt to remove certain issues from the domain of democratic decision-making. If only one view of immigration is deemed rational and morally tolerable, the issue is effectively excluded from public debate. At the same time, a space is created for demagogues.

Denying expression to a widespread public concern is rarely sustainable for long in a functioning democracy. If those who feel this concern are dismissed as retrograde and racist, they will soon flock to leaders who mobilise and accentuate their fears. Populism is a backlash against the expanding empire of rights and a warning that the empire is in danger of bringing about not only its own downfall, but that of liberal societies themselves.