 Good evening everyone and welcome, a very warm welcome. One of the real advantages in holding this lecture via Zoom is that so very many of you are able to join us this evening. It's a real pleasure to welcome you all. I'm Sarah Worthington. I'm the director of the Cambridge Private Law Center and a professor in the law faculty. Each year, in partnership with Freshfields, we hold an annual law lecture. One of our ambitions in holding this lecture is to stimulate informed and lively debate about some of the fundamental and serious issues facing us. And good heavens, we do seem to be facing a number of those at the moment. This ambition to stimulate debate is possible even with a lecture delivered via Zoom. The very best of public lectures are those that have us discussing their ideas long after the lecture is over. That is likely to be a given with this year's speaker, Lord Sumption. He really does need no introduction. Most of you are here precisely because he needs no introduction. You know already about his early career as an Oxford Don and a medieval historian, and that he has always maintained his work in that discipline. You know that he then became a barrister and quickly rose to be one of the leading QC's of his generation. And you know that he was then the first justice to reach the Supreme Court without previous full-time judicial experience. And if you listened to the wonderfully warm, valedictory speeches on his retirement from the Supreme Court, then you will also know that Lord Sumption rose to the very top in all these endeavors and left his significant and distinctive mark in each of them. And no doubt, you're all here because of that. But I imagine you are also here because you heard Lord Sumption as he delivered the 2019 Reef Lectures, Law and the Decline of Politics. Or you've read the book that followed, or perhaps you've heard Lord Sumption engaging to great effect on law and politics, either on the radio, or you've read him in the serious print media. Tonight, Lord Sumption's lecture is titled Government by Decree, COVID-19 and the Constitution. I confess that the first time I heard the expression government by decree was when I arrived in Moscow in the very early 1990s, and that was indeed a serious lesson in law and politics. After his lecture, Lord Sumption will take questions. He will take questions in the Q&A box and will gather those up combining them where we can to get through as many as possible. Some will be missed out. But before I give up the microphone, I want to make one more comment. I don't want you to sit there listening to this lecture, thinking that all of Lord Sumption's prodigious energies are devoted exclusively to intellectual endeavor. You may not know it, but I understand that Lord Sumption also has a history of serious skiing and sailing and piloting light aircraft. And several weeks ago, when I communicated with him about doing this lecture online, he was cycling through the vineyards in northern France. And then a few weeks later, as we settled the final details, he asked if there were any technical impediments to delivering this lecture from Milan. Apart from inducing envy, I thought not. So Lord Sumption, the stage, whether in Milan or Cambridge or elsewhere, is yours. Thank you Sarah. I wish that I could be present in Cambridge, but I'm not. During the COVID-19 pandemic, the British state has exercised coercive powers over its citizens on a scale never previously attempted. This has taken effective legal control enforced by the police over the personal lives of the entire population, where they could go, whom they could meet, what they could do even within their own homes. For three months, it placed everybody under a form of house arrest, qualified only by their right to do a limited number of things approved by ministers. This has been authorized by ministerial decree with minimal parliamentary involvement. It has been the most significant interference with personal freedom in the history of our country. We have never sought to do such a thing before, even in wartime, and even when faced with health crises far more serious than this one. Now, it is customary for those who doubt the legality of the constitutional propriety of the government's acts to start with a hand wringing declaration that they do it with a heavy heart, not doubting for a moment the need for such measures. I shall not follow that tradition. I doubt the seriousness of the epidemic, but I believe that history will look back on the measures taken to contain it as a monument of collective hysteria and governmental folly. This evening, however, I am not concerned with the wisdom of this policy, but only with its implications for the government of our country. A remarkable departure from our liberal traditions surely calls for some consideration of its legal and constitutional basis. As is well known, present government came to office after the general election of December 2019 with a large majority and a good deal of constitutional baggage. It had not had an absolute majority in the previous parliament, which had rejected its policy on the terms for leaving the European Union. It had responded to parliamentary opposition with indignation. The Attorney General told the House of Commons in September 2019 that they were unfit to sit, surely one of the most extraordinary statements ever made in public by a law officer of the Crown. The government had endeavored to avoid parliamentary scrutiny of their negotiations with the European Union by proroguing it and had been prevented from doing so by the Supreme Court's decision in Miller number two. The ground for the court's intervention was that the prorogation would impede the essential function of parliament in holding the government to account. This decision was certainly controversial in expressing as a rule of law, something that had previously been regarded as no more than a political convention, although for my part I have no doubt that it was right. But whether it is properly classified as law or convention, the constitutional principle at which the court stated was surely beyond question. Governments hold power in Britain on the sufferance of the elected chamber of the legislature. Without that, we are not a democracy at all. Now, as the court pointed out, the dependence of the government on parliamentary support was the means by which, and I quote them, the policies of the executive are subjected to consideration by the representatives of the electorate. The executive is required to report, explain and defend its actions and citizens are protected from the arbitrary exercise of executive power. The present government has a different approach. It seeks to derive its legitimacy directly from the people by passing their elected representatives. When people have no institutional mechanism for holding governments to account other than parliament. The effect is that ministers are accountable to nobody, except every five years at general elections. Within four months of the general election, the new government was faced with the coronavirus epidemic. The minutes of the meetings of sage, its panel of executive expert scientific advisors, record that shortly before the lockdown was announced. The behavioral scientists advised against the use of coercive powers. Citizens, they said, should be treated as rational actors, capable of taking decisions for themselves and managing personal risk. The court acted on that advice. Driven by the public panic and the general demand for action, it opted for a course which it believed would make it popular. It chose coercion. For this, it needed statutory powers. There were three relevant statutes. The coronavirus act was passed specifically to deal with COVID-19. This hefty document of 348 pages with 102 sections and 29 schedules was pushed through all its stages in a single day in each House of Parliament, just as the lockdown was announced. In the time available, no serious scrutiny of its terms can have been possible. The coronavirus act was primarily concerned to enlarge the government's powers to marshal the medical resources of the country and to authorize additional public expenditure. But tucked away in schedules 21 and 22, there were additional powers to control the movements of people. Schedule 21 authorizes public health officials to screen and test people for infectious diseases. They are given extensive powers to control the movement of anybody found to be infectious and to call on the police to enforce their directions. Schedule 22 confers on the Secretary of State extensive powers to forbid events or gatherings and to close premises for the purpose of controlling the transmission of COVID-19. The present purposes have the important point to note is that apart from the power to prevent events or gatherings, the act conferred no power to control the lives of healthy people. The measure stood in a long tradition dating back many centuries by which infectious diseases are controlled by the confinement of infectious people and not by the confinement of healthy ones. The power to confine healthy people was however conferred by another statute, the Civil Contingencies Act of 2004. The Civil Contingencies Act is the only statute specifically designed for emergencies serious enough to require the kind of measures that we have seen. It authorizes ministers to make regulations to deal with a wide variety of events or situations, including those which quote, threaten the serious damage to human welfare. These are defined so as to include things which may cause loss of life or illness. The regulation power could not be wider. The measures are authorized to do by regulation anything that parliament can do by statute, i.e. anything at all. Specific examples given in the act include restricting the movement or assembly of people and controlling travel. In other words, it authorizes government by executive decree. In writing these provisions, parliament recognized that emergency legislation of this kind is constitutionally extremely dangerous. It therefore provided for the powers to be exercised only under very stringent parliamentary control. I shall return in a moment to that question. The parliament chose not to introduce a general lockdown power in the Coronavirus Act and not to use the power that it already possessed under the Civil Contingencies Act. Instead, it resorted to the much more limited powers contained in Part 2A of the Public Health Control of Disease Act 1984 as amended in 2008. Section 45C1 of the amended act authorizes the Secretary of State to make regulations, quote, for the purpose of preventing, protecting against, controlling or providing a public health response to the incidents or spread of infection or contamination in England and Wales. Now that sounds very wide, but the problem about it is that this power is couched in wholly general terms. It is a basic constitutional principle in the United Kingdom that general words are not to be read as authorizing the infringement of fundamental rights. The best known example, the best known formulation of what has been called the principle of legality comes from the speech of Lord Hoffman in ex-party Sims, the decision of the House of Lords in 2000. His words are well known to lawyers, but they are so apposite as to be well worth repeating. Parliament, he said, must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because that is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. Now there are few more basic rights than personal liberty. The effect of the principle of legality is that those proposing its curtailment have got to be specific about it and to take the political heat. So the question is this, what specific powers to curtail personal liberty does the Public Health Act confer. The answer to that question is that its main purpose was to confer extensive powers on magistrates to make orders in relation to particular people thought to be infectious or specific premises thought to be contaminated. Magistrates can make orders disinfecting infectious people quarantining or isolating them or removing them to hospitals, among other things. Magistrates can order the closure or decontamination or premises known to be contaminated. Ministers are given very limited powers in this area, only two of which are relevant to the lockdown or to current measures of social control. In 1945 C ministers have a specific power to make regulations controlling events for gatherings. A gathering is not defined, but the context shows that it is concerned with much more substantial assemblies than ordinary social interchange in people's homes. The object was mainly to deal with threats to public order. Otherwise, the only specific power conferred on ministers is a power to do some of the things that a magistrate can do. The result is that ministers can make regulations controlling people thought to be infectious, but there is no specific power under the Public Health Act to confine or control the movements of healthy people. It would not be interpreted as conferring a power of that kind would not just be inconsistent with the principle of legality. It would also be contrary to the whole tenor of the act. It is axiomatic that if a statute deals in terms with the circumstances in which a power can be exercised so as to curtail the liberty of the subject. It is not open to a public authority to exercise the power in different or in wider circumstances. The courts will I suspect be tempted to give the government more leeway than they are entitled to, but on well established legal principles, the powers under the Public Health Act that were not intended to authorize measures as drastic as those which have been imposed. Why did the government not include a lockdown power in the coronavirus act, given that it was drafted at the inception of the crisis. Most plausible explanation is that it thought that there might be difficulty in getting such a thing through parliament without further debate and possible amendment. Why did they not use the contingencies several contingencies act which was already on the statute. The plausible answer to that is that the civil contingencies act required a high degree of parliamentary scrutiny and control which ministers wished to avoid emergency regulations under the civil contingencies act have to be laid before parliament in draft before the date. If the case is too urgent for that, they have to be laid before parliament within seven days or they will lapse. If necessary, parliament must be recalled. Even if the regulations are approved. They have been enforced for only 30 days, unless they are renewed and then reapproved unusually for a statutory instrument parliament is authorized to amend or revoke them at any time. By comparison, the degree of scrutiny provided for under the Public Health Act is much more limited and therefore more welcome to ministers in urgent cases regulations under the Public Health Act. They have provisional validity ending parliamentary approval for 28 days, and that limit is extended any period during which parliament is not sitting. Parliament cannot amend them. And once it has approved them it cannot revoke them. They remain in force for whatever period ministers may decide. Now these major differences in the level of parliamentary scrutiny were actually noticed and remarked upon at the time when the powers in question were added to the Public Health Act in 2008. The government of the day told the Constitution Committee of the House of Lords, but the lesser degree of scrutiny was appropriate, because the powers under the Public Health Act were not intended to authorize anything very drastic. They were mainly directed said the government at controlling the behavior of infected people, and then only in faces where the proposed measure was, and I quote, minor in scope and effect. The problems begin with the very first days of the lockdown. In his televised press conference on the 23rd of March. The Prime Minister described his announcement of the lockdown as an instruction to the British people. He said that he was immediately stopping gatherings of more than two people and all social events, except for funerals. A number of police forces announced within minutes of the broadcast that they would be enforcing this at once. The Health Secretary Mr Hancock made a statement in the House of Commons the next day, in which he said this, these measures are not advice, they are rules. All of that was bluff. Even on the widest view of the legislation, the government had no power to give such orders without making statutory regulations and no such regulations existed until three days later at 1pm on the 26th of March. The Prime Minister had no power to give an instruction to the British people with immediate effect, and certainly no power to do so by a mere oral announcement at a dining street press conference. The police had no power to enforce them. Mr Hancock's statement in the House of Commons was not correct. Until the 26th of March, the government's statements were not rules, they were advice which every citizen was at liberty to ignore. Now to complain about the gap of three days during which the government pretended that the rules were in effect, when they were not, will strike some people as a bit pedantic. The regulations were, after all, eventually made, albeit late. But it revealed a cavalier disregard for the limits of their legal powers, which has continued to characterize the government's behavior. Over the following weeks, the government made a succession of press statements containing what it called guidance, which went well beyond anything in the regulations. These statements had no legal status whatever, although that fact was never made clear. It's a distancing rule, for example, never had the force of law in England. Yet many police forces set about enforcing the guidance notwithstanding until the College of Policing issued firm advice to them that they had no business doing that. Now, why did the government, once they had announced the lockdown on the 23rd of March, wait for three days until the 26th of March before making their regulations and then resort to the emergency procedure on the ground that it was so urgent that Parliament could not be consulted in advance? The obvious answer, I'm afraid, is that Parliament adjourned for the Easter recess on the 25th of March. The government deliberately delayed their urgent regulations so that there would be no opportunity to debate them in Parliament before the recess. The period of 28 days before any kind of parliamentary scrutiny was required was thus extended by the 21 days of the recess, i.e., to the middle of May. This is not the only respect in which the level of parliamentary scrutiny of the Executive has been curtailed. The Coronavirus Act authorizes any payments connected with Coronavirus without limit and without any form of advanced parliamentary scrutiny. The Contingencies Fund Act, which passed through every stage of the House of Commons on the day after the Coronavirus Bill, authorized an increase in the statutory maximum in the Contingencies Fund from 2% of the previous year's authorized expenditure to 50%. The result was to make an additional £266 billion available to the government with no kind of advanced parliamentary scrutiny. These measures departed from a century and a half of constitutional principle by which Parliament should control exactly how public funds are spent. Now there was a number of other steps radically affecting the rights of individuals which the government took without any kind of parliamentary sanction. Most of these involved exploiting existing regulatory regimes. The two-metre distancing rule, for example, was uncritically adopted by the Health and Safety Executive. As a result, a number of building sites and factories where it was impractical to observe it were required to close, although they were not included, in the closure orders made under statutory powers. Perhaps the most remarkable example concerns the steps which the government took to deprive people of access to medical and dental services. The provision of medical and dental services was expressly excluded from the closure orders made under the Public Health Act. However, the combination of government advice and government inspired pressure from regulators was used to limit access to general practitioners. They were required to conduct video triages and refer serious cases to hospitals while telling others to wait. This has had a serious impact on the diagnosis and early treatment of far more mortal diseases than COVID-19, notably cancer. More drastic still were the steps taken to close down dental practices. On the 25th of March, the Chief Dental Officer, a government official, published a statement referring to the Prime Minister's announcement of the lockdown and requiring dentists to stop all non-urgent activity. In reality, they were required to stop even urgent activity as well. Their role was limited to carrying out a video triage of patients. Urgent cases were to be referred to a small number of regional urgent dental units, which essentially performed extractions. Treatment was to be refused in all other cases. This direction, which had no statutory basis, left many people in pain or discomfort for months and threatened a significant number of dental practices with insolvency. Even after it was lifted at the beginning of June, distancing rules were imposed which seriously reduced the number of patients that a dentist could see and made dental practices in many cases financially unviable. Now, this is a serious matter because the government's use of non-statutory procedures like these escapes parliamentary scrutiny. Parliament may, for example, be taken to have approved, albeit seven weeks later, the exception in the health regulations which allowed the provision of dental services to continue. But Parliament never had the opportunity to approve the instruction of the Chief Dental Officer to precisely the opposite effect. These events give rise to concern on a number of counts. The most draconian of the government's interventions with the most far-reaching economic and social effects have been imposed under an Act which does not appear to authorize them. The sheer scale on which the government has sought to govern by decree, creating new criminal offences, sometimes several times a week on the mere say so of ministers, is in constitutional terms truly breathtaking. The government has routinely made use of the exceptional procedure authorizing it in urgent cases to dispense with advanced parliamentary approval, even where the measure in question has been rooted for days or weeks to advance. Thus the original lockdown is imposed without any kind of parliamentary scrutiny until the middle of May, seven weeks later. Thereafter, there was little scope for further scrutiny. Even the PAHS, which the government purported to exercise, were gratuitously enlarged by tendentious and misleading guidance generally announced at press conferences. A special word needs to be said about the remarkable PAHS of enforcement conferred upon the police. The police received PAHS to enforce the lockdown regulations by giving directions to citizens which it was the criminal offence to disobey. Fixed penalty notices are normally authorized by statute in modest amounts or minor regulatory infractions, parking and mess up offences. The government's regulations, however, authorize them for a great variety of newly created offences and sometimes in very large amounts. On the 26th of August, the government introduced by decree an offence for being involved in a gathering exceeding 30 people. And it empowered any policeman in the land to issue a fixed penalty notice of 10,000 pounds. This sum, enough to ruin most people, was far in excess of any fine that would be imposed by a court for such an offence. The PAHS was originally advertised as being intended to deal with raves, but it has of course been used for much wider purposes. In particular, it has been used to suppress protests against the government's coronavirus policies. On the 30th of August, the police served a 10,000 pound fixed penalty notice on Mr Piers Corbyn for addressing a rally against masks in Trafalgar Square. The regulations contain an exception for political protest, provided that the organizers have agreed a risk assessment and taken reasonable steps to ensure safety. On the 26th of September, the police broke up a demonstration against the government's measures, whose organizers had agreed a risk assessment with the local authority and had taken reasonable steps to ensure safety. The police claimed to have done this because some of the demonstrators had not acted in accordance with the arrangements made by the organizers. So they cleared the square using battens with considerable violence, injuring about 20 people who were guilty of nothing other than attending an apparently lawful protest. There is, of course, a notable piece of selection involved in these actions. No such fines, arrests or assaults have been seen in other demonstrations, such as those organized by Black Lives Matter or Extinction Rebellion, which did not observe social distancing either, but were thought by the police to have greater public support. The Mayor of London applauded the police action on the 26th of September. The silence from civil rights organizations such as Liberty has been deafening. The police's powers of summary arrest are regulated by primary legislation, the Police and Criminal Evidence Act 1984. Under regulation 9-7 of the original lockdown regulations, the government purported to amend that act by enlarging the police's powers of arrest so that they extended to any case in which a policeman reasonably believed that it was necessary to arrest a citizen in order to maintain public health. I need hardly say that the Public Health Act confers no power on ministers to amend other primary legislation in this way. In fact, the police substantially exceeded even the vast powers that they received in the period immediately after the announcement of the lockdown. A number of chief constables announced that they would stop people acting in a way that they regarded as inessential, although there was no warrant for this in the regulations. One of them threatened to go through the shopping baskets of those exercising their right to obtain supplies so as to ensure that they were not buying anything that a constable might regard as inessential. Other forces set up roadblocks to enforce powers that they did not possess. Derbyshire Police notoriously sent up surveillance drones and published on the internet a film clip denouncing people taking exercise in the Derbyshire Fells, something which people were absolutely entitled to do. When I ventured to criticize them in a BBC interview for acting beyond their powers, I received a letter from the Derbyshire Police Commissioner objecting to my remarks on the ground that in a crisis such things were necessary. The implication was that in a crisis, the police were entitled to do whatever they thought fit without being unduly concerned about the limits of their legal powers. That is my definition of a police state. Now, many people think that in an emergency, public authorities should be free to behave in this way, because the ordinary processes of lawmaking are too deliberate and too slow. I do not share that view. I believe that in the long run, the principles on which we are governed matter more than the way in which we deal with any particular crisis. They're particularly important in a country like ours in which many basic rights and liberties depend on convention. They depend on a recognition, not just that governments must act within their powers, but that not everything that a government is legally entitled to do is legitimate. The Public Health Act requires any exercise of its regulation making powers to be proportionate. The government has included in every regulation it has made to date a formulaic statement that it is. But its actions speak differently. Its public position is explicable only on the basis that absolutely anything is justifiable in the interests of hindering the transmission of the disease. I reject that claim. In a society as wide and as intrusive, as those which the government has purported to exercise should not be available to a minister on his me I say so. In a society with the liberal traditions of ours, the police ought not to have the kind of arbitrary enforcement powers that they have been given, let alone the much wider powers that they have not been given, but have sought to exercise anyway. Things should not happen without specific parliamentary authority in the course of which the government can be required to explain and justify its proposals and expose the evidence behind them in detail. So that its proposals can be properly debated amended or rejected by democratic legislature that in position by decree, even if the decrees are lawful is not consistent with the constitutional traditions of this country. Now there are I would suggest at least three lessons to be learned from this dismal story. The first lesson is one to which I drew attention in my BBC reef lectures last year. Our society craves security. The public has unbounded confidence, which no amount of experience will dent in the benign power of the state to protect them against an ever wider range of risks. In Britain, the lockdown was followed by a brief period in which the government's approval ratings were sky high. That is how freedom dies. What is lose their liberty. It isn't usually because some despot has crushed it under his boot. It is because people voluntarily surrender that liberty out of fear of some external threat. Historically, fear has always been the most potent instrument of the authoritarian state. That is what we are witnessing today. But the fault is not just in our government. It's also in ourselves. It provokes strident calls for abrasive action, much of which may be unhelpful or damaging. It promotes intolerant conformism. It encourages abuse directed against anyone who steps out of line, including many responsible opponents of this government measures and some notable scientists who have questioned their empirical basis. These are the authentic ingredients of a totalitarian society. So I regret to say is another feature of the history, namely the propaganda by which the government has to some extent been able to create its own public opinion. Fear was deliberately stoked up by the government. The language of impending doom, the daily press conferences, the alarmist projections of the mathematical modelers, the manipulative use of selected statistics, the presentation of exceptional tragedies as if they were the normal effects of COVID-19. And above all, the attempt to suggest that COVID-19 was an indiscriminate killer when the truth was that it killed identifiable groups, notably those with serious underlying conditions of the old who could and arguably should have been sheltered without co-essing the entire population. These exaggerations were not accidental. They were triggered naturally from the logic of the measures themselves. They were necessary in order to justify the extreme steps which the government had taken and to promote compliance as a strategy. This was entirely successful. So successful was it, but when the government eventually woke up to the damage that it was doing, especially to the economy and to the education of children, it found it difficult to reverse course. They eventually asked themselves, well, what had changed? The honest answer to that question would have been that nothing much had changed. The threat had just not been fairly presented in the first place. Other governments in Germany, in France, in Sweden, and elsewhere, addressed their citizens in measured terms, treating them as adults. And the level of fear in those countries was significantly lower. It is not fair to criticize the government of the United Kingdom for the mere fact that the death toll in Britain is the second highest in Europe. There are too many factors other than government action, which determine the mortality of COVID-19. But it is fair to blame them for the fear which has meant that Britain seems likely to suffer greater economic damage than almost every other European country. The ease with which people could be terrorized into surrendering basic freedoms, which are fundamental to our existence as social beings, came as a shock to me in March of this year. So has much of the subsequent debate. I certainly never expected to hear the word libertarian, which only believes means believer in freedom, used as a term of abuse. Perhaps I should have done, because this isn't a new problem. Four centuries ago, the political theorist Thomas Hobbes formulated his notorious apology for absolute government. The basis of human society, Hobbes argued, is that people have no right to be free because they completely and irrevocably surrender their liberty to an overpowering state in return for security. In an age obsessed with escaping from risk, this has become one of the major issues of our time. Now I have criticized the way in which the government has invaded civil liberties with limited parliamentary scrutiny or none. But of course, parliamentary scrutiny is not enough, unless Parliament itself is willing to live up to its high constitutional calling. It has to be ready to demand rational explanations of ministerial actions and to be voted to vote down regulations if those explanations are not forthcoming or are not persuasive. Unfortunately, there is very little evidence of this. The public's fears effectively silenced opposition in the House of Commons. The opposition didn't dare to challenge the government, except to suggest that they should have been even tougher, even quicker. Parliament allowed the Coronavirus Act to be steam-rollered through with no real scrutiny. It agreed to go into recess at the critical point in March and April, when the need for active scrutiny of government was at its highest. And it meekly accepted government guidance on social distancing and submitted to a regime under which only 50 of its 650 members of the House of Commons could be in the chamber at any one time, with up to 120 more participating remotely on video screens. Now that has meant that instead of answering to a raucous and often querulous and difficult assembly whose packed ranks can test governments with the largest majorities, ministers had an easy ride. The exclusion of most of the House of Commons from participating in the core activities for which they had been elected by their constituents was the most remarkable abdication of the House of Commons constitutional functions. It has reduced its scrutiny of the government to the status of a radio phone in program. However, the basic problem is even more fun. Under its standing orders, the House of Commons has no control over its own agenda. Its business is determined by the leader of the House, the government minister, and by the speaker. Backbenchers, however numerous, have no say in the official proposition not much more. In this respect, the House of Commons is unlike almost every other legislature in the world. They determine their own agenda through bipartisan committees or through rules which identify which enable members with a minimum of support to move their own business. When in September, MPs began to kick back against the government's measures. The only way that they could do it was to tack a proviso onto a resolution authorizing the Continuance of the Coronavirus Act, requiring the government to obtain parliamentary approval of regulations made out of the public health act. The speaker probably rightly ruled this out as an abuse, but it shouldn't have been necessary to resort to devices like that. The standing orders date from another age when there was a shared political culture at Westminster, which made space for dissenting views and a shared respect for the institution of parliament itself. The procedures of the House of Commons are not fit for a world in which the government seeks to shove MPs into the margins. The speaker Hoyle was surely right to accuse ministers of despising parliament, but it will take more than schoolmasterly lectures to address this problem. Over the past few years, the House of Commons has lost much of the prestige and respect that it once enjoyed with the public. Mr Cox's strictures against parliament in September 2019 were outrageous, but parliament will richly deserve them unless it can rise to the challenge of controlling the most determined attempts by any modern government to rule by decree. So much for the first lesson of these events. The second is a variant of Lord Acton's famous dictum that power corrupts and absolute power corrupts absolutely. Ministers do not readily surrender coercive powers when the need for them has passed. The Scott inquiry into the Matrix Churchill scandal, which reported in 1996, drew attention to a broad category of emergency powers which had been conferred upon the government at the outset of the Second World War, until such time as his Majesty should declare by ordering council that the war had ended. These had been kept in force by the simple device of ensuring that no such order in council was ever placed before his Majesty. They were still being used in the 1970s and 1980s on the footing that the Second World War was still in progress, the purposes quite different from those originally envisaged. Likewise, the powers conferred on ministers and on the police by the terrorism acts of 2000 and 2006 have been employed not just to combat terrorism, but for a variety of other purposes, including the control of peaceful demonstrations, the enlargement of police stop and search powers to deal with ordinary non-terrorist defences, and the freezing of the assets of an Icelandic bank for the protection of its UK depositors. So it will come as no surprise that the present government, having announced on the 23rd of March that the lockdown would be necessary until the NHS was able to cope with peak hospitalizations, should in fact have continued through May and June, well after this objective had been achieved. Ministers did this notwithstanding the warning of their scientific advisors in reports submitted by SAGE in February and March, that a lockdown could delay infections and deaths but not stop them. Once again, fear persuaded people to accept the surrender of their liberty, even when the lockdown was no longer capable of achieving the objective originally claimed for it. If the government had made its regulations under the Civil Contingences Act, as it should have done, they would have had to be re-approved by Parliament every 30 days. Even with a relatively supine House of Commons, it is permissible to hope that Parliament would have least have called for a coherent explanation of this profoundly damaging decision. The third and last lesson, which I want to draw from these events, is that government by decree is not just constitutionally objectionable, it is usually very bad government. There is a common delusion that authoritarian government is efficient, it doesn't waste time in argument or debate, strong men get things done. Historical experience should warn us that this idea is almost always wrong. The concentration of power in a small number of hands and the absence of wider deliberation and scrutiny enables governments to make major decisions on the hoof without proper forethought, planning or research. Within the government's own ranks, it promotes loyalty at the expense of wisdom and flattery at the expense of objective advice. The want of criticism encourages self-confidence and self-confidence banishes moderation and restraint. Authoritarian rulers sustain themselves in power by appealing to the emotional and irrational of in collective opinion. The present government's mishandling of COVID-19 exemplifies all of these vices. If you might think about the merits of the decisions, it is impossible to think well of the process which produced them, which can only be described as jerky, clumsy, inconsistent and poorly thought out. There is not and never has been an exit plan or anything that can be described as a long-term strategy, only a series of expedients. The Accounts Committee of the House of Commons reported in July that the lockdown has been announced without any kind of cost-benefit analysis or advanced planning for its disruptive economic effects. So many relevant social and educational considerations were disregarded in favour of an exclusive concentration on public health issues and not all of those. There are classic problems of authoritarian government. It is habitually inefficient, destructive, linkered and ultimately not even popular. The British public has not even begun to understand the seriousness of what is happening in our country. Many, perhaps most of them don't care and won't care until it's too late. We simply feel that the end justifies the means, the motto of every totalitarian government which has ever existed. Yet what holds us together as a society is precisely the means by which we do things. It's a common respect for a way of making decisions, even if we disagree with the decisions themselves. It is very difficult to respect the way in which this government's decisions have been made. It marks a move to a more authoritarian model of politics which will outlast the present crisis. There is little doubt that for some ministers and their advisors, this is a desirable outcome. In the next few years, you'll see a radical and lasting transformation in the relationship between the state and its citizens. And with it will come an equally fundamental change in our relations with each other, a change characterised by distrust, resentment and mutual hostility. In the nature of things, authoritarian governments fracture the societies which they govern. This political power as an instrument of mass coercion is corrosive, it divides and it embitters. In this case, it's aggravated by a sustained assault on social interaction, which will soon relate a loosened the glue that has helped us to deal with earlier crises. The unequal impact of the government's measures erodes any sense of national solidarity. The inadequately housed, the precariously employed, socially isolated have suffered most from the government's measures. Above all, the young who are little affected by the disease itself have been made to bear almost all of the burden in the form of delighted educational opportunities and employment prospects whose effects will last for years. Their resentment of democratic forms, which was already noticeable before the epidemic, is mounting as recent polls have confirmed. The government has discovered the power of public fear to let it get its own way and it will not forget. Aristotle, in his politics, argued that democracy was an inherently defective and unstable form of government. Was he thought too easily subverted by demagogues that seeking to obtain or keep power by appeals to public emotion and fear? What has saved us from this fate during the two centuries that democracy has existed in this country? The tradition of responsible government based not just on law, but on convention, liberation and restraint, and on the effective exercise of parliamentary as opposed to executive sovereignty. But like all principles, which depend on a shared political culture, this is a fragile tradition and it may now founder after two centuries in which it has served this country very well. And in this case, it's a nominal democracy with a less deliberative and a less consensual style and an authoritarian reality, which we will like a great deal less. Thank you for listening to me. Thank you. Thank you very much, Lord Sumption. Thank you very much Lord Sumption. If you were in Cambridge, no doubt you would hear the applause. So thanks just yet you did agree, I think to answer questions and there are 75 questions and I had more beforehand. So we certainly won't get through all of them. So what I'm going to try and do is combine a number of issues and get your reaction to whichever bits you feel like reacting to, if I can put it like that. So where I want to start is directly on some of the legal substance that you raised in your lecture. And this sort of comes in three parts. First, has the government broken the law in its exercise of powers in respect of lockdown or mask mandates, etc, etc. And if it has how should that be addressed. And then the other side of it is, should the people be obeying these measures or resisting them. And if they should be resisting them, how. And I hesitate to push you this far but do I put it this way, do you expect civil unrest as we get towards Christmas and New Year, even if you wouldn't go so far as to recommend it. And the rest of those questions has the government broken the law. The government has in my view, past regulations, which it had no power to pass. They are therefore liable to be quashed on judicial review. It's not suggested that the government could not have done all the things it has done under other statutes, but it would have had to submit to a much more stringent regime of parliamentary supervision, which didn't want to do. When one talks about breaking the law one sort of has in mind people being carted off to prison by policemen. This isn't that kind of situation. It's a situation where the government is supported to exercise, which doesn't have with the result that it acts are simply analogy. And resistance. Well, as you remarked earlier this evening Sarah. I am in Milan, where last night's there was serious civil unrest in the main public squares and there have been in many cities in Italy. I expect this to happen. United Kingdom, I would be very surprised if it did, because we have a very different tradition about how to behave on the streets and about the appropriate measures of political protest. I think, however, that and this brings me on to the third part of your three part question. I think however that people will respond to some of these rules by simply ignoring them. This is a rule which I would expect resistance to take the people. I personally do not believe others will disagree that there is a moral obligation to comply with the law simply because it is the law. It seems to me that there are circumstances in which there are more powerful considerations the other way. When you hear ministers, for example, discussing the question whether people should spend Christmas with their families, as if the right to spend Christmas with your family was the kind of boom or gift or favor conferred by ministers out of the kindness of their hearts. I have to ask yourself, what are the moral limits of the government's power even by lawful regulations, let alone unlawful ones, to control the private lives of individuals. Personally, I think that some of these regulations go well beyond the moral rights of government. I would not be at all surprised if they were widely ignored. One of the striking things is that although polls show that there is still a majority or a much smaller one, supporting the government's measures or indeed asking for them to be strengthened, people's actual behavior is different. The behavioral scientists on sage have reported that the rule of six, for example, has been widely ignored. I have no doubt that the same will be true of any attempt to stop people spending Christmas with their families. Can I follow that up with a question that goes a bit further in the sense of how the public tends to respond to rules, complying with some disobeying others. Courts fear flying in the face of public opinion when they're deciding to uphold the law or the rule of law, depending on the sort of issue. So for example, the question came from an Australian, there are closed borders between states in Australia that have quite a lot of public support, and some queries about the legitimacy of imposing those closed borders. When that eventually gets to court. Will the judges be a bit hesitant about finding the imposition of the borders are wrong. Well, no judge will ever admit to being influenced by public opinion in the resolution of a legal question. But it's a matter of daily experience. But in practice, judges are much more reluctant to interfere with decisions for which there is wide popular support and others. Unfortunately, I think that judges need to be fearless in applying the law, particularly in a case like this, where the government could have done what it has done perfectly lawfully, but chose to do it in a way that evaded parliamentary scrutiny. The answer is in general terms, judges are often more strongly influenced by public opinion than they either ought to be or will admit to be. I very much hope that in an issue as important as this, they will apply the law as it is. But going very, very much wider than your lecture. There is a plea really from the students and the young lawyers I sent that really what could or should that generation be doing about ensuring constitutional safeguards remain in place and that we have less authoritarian regime. How do you sort of stop this process in its tracks if it is a direction of travel? Well, in a society like ours, which does not readily resort to violence, as some European countries do, there is not a great deal that they can do other than support judicial reviews in the courts. Some of the things that I have criticized seem to me to have been beyond the powers of government. Some are not. They are simply objectionable. And I think that all that we can really do in a society which essentially believes that political protest should be peaceful is to be politically active, to engage with MPs, to be prepared to protest visibly, but not violently. Do you think that, I'm not quite sure how to word this, but you appear in the press reasonably often, and yet it would be my perception that the views that you express don't get equal hearing with the views that perhaps persuaders that we ought to be fearful and that there are things we should be afraid of and rules that we should comply with. And I don't know that I'd go so far as to say this is part of the cancel culture or ostracism of certain ideas. There is a sense I think increasingly and one of the questioners asked about this that apparently political scientists about 10 years ago began to talk about opinion corridors. I hadn't heard this expression before, but you know the narrowing of a range of ideas which it's acceptable to talk about. And that narrowing of the range of acceptable ideas is happening in our culture. And do you think the press contributes to it and do you think perhaps the lack of an opposition contributes to it. I think that there is a much more powerful tendency now for only certain points of view to be regarded as acceptable. I certainly cannot complain about that in my own case. I have written my views by now fairly well known. I have written and expressed them in five different papers at different times. Since March, complaints about the one-sidedness of the of the government's project fear have been made most commonly in the context of the BBC. I think that the BBC does tend to give undue prominence to the more alarmist views, and there is a fair amount of self-censorship. But I have to say that I have frequently given interviews on the BBC, on programmes which have dealt with the matter in a perfectly balanced fashion. So I think it's light and shade, but no generalisation in this area is going to be completely true. There is certainly a growing intolerance of people who step out of line in public opinion. But I think that's highly regrettable, not least, because it tends to rule out what may be constructive thinking about how to get out of our current impossible position. Then I've got two questions that seem just a bit random, but I'm going to ask them anyway before, you know, looping back to your lecture. One is, do you think the English common law provides a wider and more effective human rights framework than the Human Rights Act? So you can see why this is a bit left of field. And the other question also left of field, just to give you time to think, is if you look around the world at the way countries have succeeded or not in managing the pandemic. Do you think it's true that democracies have in general managed it less well than autocracies or authoritarian regimes? I think that we might learn from that that democracies are good for some things, but not good for everything. So two very different questions, but. Well, on the first stop. I think that the common law cannot protect human rights as effectively as the Human Rights Convention. The price of their protection through the Human Rights Convention is very high, because the price includes transferring to courts of law decisions which are essentially political in nature. Like, classically, when there is a competing public interest which justifies departing from a prima facie human right. Essentially the basis on which in my reef lectures, I felt that the impact of the Human Rights Act had on the whole in unfortunate. On the, the second issue. Can you just remind me of the second issue problem of multiple questions. Looking around the world. Well, of course, it's not quite such a dichotomy as your question implies because what has happened is that democracies have turned themselves into more autocratic regimes that in response to, in most cases, pressure from public opinion. In some European countries, notably France and Italy, there is a much more authoritarian tradition than we are used to President of France has extensive legislative powers in his own right which our government does not have. Because our traditions were different. The, but what has happened is in a sense a great deal more shocking in our country than the similar things that have happened in some other European. I certainly do not think that this means that autocracies are a better deal, mainly because this isn't just a public health issue. It's an educational issue. It's a psychological issue. It's a social issue. And it seems to me that democracies are potentially a great deal better because of their deliberative processes at looking at the position as a whole, instead of focusing narrowly on simply what will, in the short term, reduce the transmission of COVID-19. The basic problem of the past few months has been the narrow focus of government from time to time. And it's forgetfulness of the wider collateral consequences of their acts. Human societies are very, very complex entities, and you cannot interfere with basic features of humanity without inviting unwelcome collateral consequences. Personally, I think that's a democratic system which remains democratic even in a crisis is very much better at dealing with things on that broader basis. And then one, one last question before I hand over to Diva dash from dash from fresh feels to give the vote of thanks. There's some questions which I'd love to know the answer to but I don't think that you would give them to me, especially in a public forum. Perhaps not ever. But last word, you know, is there anything you have an audience of now not. It was over 1000 but now a bit under any last word because a lot of the questions were asking, what should we do. They had different ways of putting it but what should we do now. I think that we should. When we decide whether to comply with the regulations, we need to take into account law but we need to take into account an altogether wider range of other factors that it's unfortunate that the government itself did not take into account. I think that we need to become more politically engaged. We cannot claim the right to criticize what is happening in our society, unless we are prepared to take active steps to ensure that we participate in the decision making process. We should join political parties. We should deal with our MP. We should make MPs feel that what they are doing is being watched by their constituents, not just by an addicts or busy bodies but by everybody. I think the decline of political engagement in the United Kingdom and indeed in many other democracies is the single largest reason why democracy is becoming out of fashion and less effective and is in danger of dying. That's something serious to take away. Jonathan, a very very personal thank you from me. That was a terrific evening, but Diva is going to do the formal thank you for us all. Diva, over to you. Thank you very much, Sarah. I'm Deborah Dass. I'm a litigation partner at Freshfields focusing on EU and commercial public law. I was invited by Red Lord Gertin College, Cambridge back in 2002 and did the LLM at Cambridge, so it's an honor for me to come back virtually, as it were, to say a few words of thanks in closing this evening. And so thanks to the Cambridge Private Law Center and particular Sarah for organizing tonight's interesting and wonderful evening and insightful evening. Thanks first and foremost to our distinguished speaker for assumption for his lively contribution to what is surely the debate of our times spoken with with true insight, customary, legal acumen, historical perspective, but also at the end there are call to arms for us all. And truly something that we should all take away and reflect on. This is the 7th Cambridge Freshfields lecture. And over the last six years, we've had no shortage of important topics to discuss, including now the impact of COVID. And whatever its constitutional implications as discussed with search eloquence by by Lord Thompson this evening, the practical effect that Sarah mentioned is that this is the first one of these that we've had to do by zoom. Speaking as a Gertonian, I wish I had the option of doing some lectures by zoom, rather than schlepping down Huntington Road at half past eight in the morning. But liberal Marx aside, this is clearly a confronting time for the nation, but obviously also for the university and its students. And if there are silver linings to our face masks. Perhaps it is that by doing this by zoom we have indeed reached a wider audience than we might have done in previous years, or assumptions important words, we're proud to be able to continue to support quality legal debate. We've had a lot about the importance of debate tonight and education at Cambridge, and we want to support the university in widening access to that. This is, I think the end of the first week of full term at Cambridge, I remember rightly. And some of you I know will have just embarked on the study of law at a time when it feels that lawyers, and in some ways, a very system of laws, as Lord assumption has suggested, are under attack. It seems to me that supporting young lawyers, supporting the study of law, supporting legal debates and the political debate if we can, supporting access to the legal profession, are ways that a firm like mine can push back against all of that. So with that in mind, I hope that by the time the eighth lecture comes around, we'll be able to do so in better informed, if not necessarily better times. Hopefully even in person, and hopefully maybe even with the traditional warm glass of wine in the square upwards. My thanks again to Cambridge, the faculty, and of course, to our speaker of assumptions. We can actually clap. Jonathan, thank you very, very much. I hope you've got something pleasant to do. It's an honour and a pleasure. What I've got to do afterwards is eat my dinner. I'm sorry, you can't have it with us. Thank you.