Jonathan Sumption has had a controversial 12 months even by his standards. The former Supreme Court judge’s condemnation of Covid-19 restrictions has scandalised the scientific community—and sometimes the public. In a recent television appearance, he told a cancer patient that her life was “less valuable” than other people’s.
So I opened his new book with a sense of trepidation, prepared for reams of armchair epidemiology. But in this collection of 12 essays, not new but updated for our times, we see Sumption back at his most interesting, cantering over law, history, politics and the constitution with all the eloquence on display in his 2019 BBC Reith lectures, in which he warned about a perceived judicial incursion into politics.
Like that lecture series, it’s challenging stuff. The essays on the folly of Scottish nationalism (Sumption, an Englishman, comes perilously close to suggesting he is entitled to a vote on independence) and diversity on the bench (only achievable, he thinks, in the short term by abandoning merit as the chief criterion of selection) are problematic. But the jurisprudential magic hidden within makes you remember why Sumption was once labelled “the cleverest man in Britain.”
The essay on the interpretation of contracts is particularly fascinating. When an unusual dispute arises, should a court interpret the agreement between two parties literally, or assume rationality on their behalf? In Sumption’s view, by presuming rationality judges effectively license themselves to divine intentions they cannot possibly know. It is, he thinks, another example of the courts overreaching.
The best chapter is at the end. Here Sumption turns to Covid-19 through the prism of law-making, rather than lockdown-scepticism. In constitutional terms, the government’s behaviour during the pandemic has been appalling, with ministers seeking to evade parliamentary scrutiny at every turn.
Sumption argues the government has abused its position and that our democracy is the weaker for it. He’s got a good point—and because it’s a subject within his area of expertise, the critique is all the more powerful. Sumption-sceptics should read this book.
Law in a Time of Crisisby Jonathan Sumption (Profile, £16.99)
