A reader has kindly transcribed some of Lord Sumption’s remarks in yesterday’s Planet Normal podcast with Allison Pearson and Liam Halligan. His ability to speak in fully-formed, grammatically correct sentences is something else.
“I think Boris Johnson is a Johnsonite and that will lead him in different directions depending on the circumstances. Boris Johnson’s main problem is that he is obsessed with PR and he is not intelligent enough to study a problem carefully and in depth. Those are his two main problems. I think the problem is aggravated by the fact that decisions are being made within government by a very very small number of people and that the principle qualification for admission to his cabinet is loyalty as a result of which he is not getting the kind of internal discussion and criticism which makes for better decision making.”
“Well, the most important thing about the Coronavirus Act is that it is not the act which has been used to justify the lockdown or other measures affecting citizens. There are no powers in the Coronavirus Bill to control the movements of healthy people. The government has in fact used the Coronavirus Act only to justify the financial implications of the lock down. Most of the Act is in fact concerned with authorising, with the minimum of parliamentary scrutiny, additional public expenditure”.
“The lockdown and the quarantine rules and most of the other regulations have been made under the Public Health Control of Disease Act of 1984 which was extensively amended in 2008. Now, there is no agreement among lawyers about which I’m about to say but I do not myself believe that that act confers on the government the powers which it has purported to exercise. Because it is a basic principle of British constitutional law that you cannot invade fundamental rights and there are few more fundamental rights than liberty, by using general terms. You’ve got to be specific about it. And the reason for that is that if you use general words to justify draconian invasions of fundamental rights, there’s too big a risk that it will pass unnoticed in the course of the parliamentary process. To invade fundamental rights you have to have absolutely specific language. The only specific language in the Public Health Act which justifies invasions of liberty relates to people who are believed, on reasonable grounds, to be infectious. Ministers can only do things that magistrates could do and magistrates only have power to control the movements of infected people or to control the opening of infected premises. They don’t have power to control uncontaminated premises or healthy people”.
“The government has deliberately – I must assume deliberately because they have plenty of legal advice – they have used an act which to put it at its lowest, its application is profoundly controversial. In my view, an act which doesn’t confer powers. Now, the oddity is, the government does have power to do what it has done under another act which it has declined to use – The Civil Contingencies Act, 2004. The CCA is concerned with emergencies including health related emergencies and it empowers ministers to do anything that can be done by an act of parliament. Now you can’t get wider words than that. Why haven’t they used it? Now the only reason that I can think of for not using it is that the CCA has very stringent provisions for parliamentary scrutiny. A regulation under the act is only provisionally valid for 7 days unless it is approved by Parliament. Thereafter, it only has validity for 30 days; it has to be renewed every 30 days. Moreover, exceptionally there are provisions entitling Parliament to amend a regulation which is laid before it or to revoke it at any time. Now, the only reason that I can think of why the government did not use the one piece of legislation that’s plainly applicable is that it wished to avoid parliamentary scrutiny.”