Set us free from lockdown, ministers, and stop covering your backs

Jonathan Sumption The Sunday Times, May 17 2020.

The lesson of Covid-19 is brutally simple and applies generally to public regulation. Free people make mistakes and willingly take risks. If we hold politicians responsible for everything that goes wrong, they will take away our liberty so that nothing can go wrong. They will do this not for our protection against risk, but for their own protection against criticism.

The lockdown was originally justified as a temporary measure to spread coronavirus infections over a longer period. This was to allow time for the NHS’s critical care capacity to catch up. Hence the slogan “Protect the NHS”. [National Health Service. md]

It was never much of a rationale. The NHS is there to protect us, not the other way round. How could its unpreparedness possibly justify depriving the entire UK population of its liberty, pushing us into the worst recession since the early 18th century, destroying millions of jobs and hundreds of thousands of businesses, piling up public and private debt on a crippling scale and undermining the education of our children?

Since the prime minister’s broadcast last Sunday, the lockdown has found a new rationale. The government has dropped “Protect the NHS” from its slogan. The reason is plain from the paper it published the following day. The NHS is not at risk.

This is partly because the government has done an outstanding job in increasing intensive care capacity, and partly because the threat to the NHS was always overstated. The critical care capacity of the NHS has nearly doubled since January, even without the 4,000 or more additional beds in seven temporary Nightingale hospitals. Around the top of the spike in infections, on April 10, 41% of NHS general acute beds were empty. Only 51% of acute beds were occupied by a Covid-19 patient. The current figure is 20%. The Nightingale hospitals stand empty. These are government figures.

Today, the lockdown is only about shielding us from the risk of infection. This raises serious questions about our relationship with the state. It is our business, not the state’s, to say what risks we will take with our own health. We are not fools or children needing to be told by ministers what is good for us, and forced by police officers to do it. We should not need to consult ministers, as the first member of the public to phone in to the daily press conference did, about whether she was allowed to hug her grandchildren.

The usual answer is that by going out and about we may infect other people. But that no longer works as an excuse for coercion. Those who do not want to run the risk of being infected can isolate themselves voluntarily. They will be no worse off than they are under the current compulsory regime. The rest of us can then get on with our lives.

The continuance of the lockdown is particularly odd given that in its latest paper the government accepts that, whatever we do, Covid-19 is likely to be with us long term. So unless it plans to keep the lockdown in place for ever, all that it achieves is to put off the moment when we have to face the risk anyway.

The prime minister told the House of Commons on Monday that his new so-called plan was workable because the British would use their common sense. In that case, why not allow them to do so by leaving the decisions to them?

Instead, we are resorting to law, which, because it requires exact definition, will always cover very many things that are perfectly harmless. Thus it was OK to go for a walk in the park but not to sunbathe. It is OK to drive to the Lake District but not to visit your second home. It is OK to meet one person but not two, and OK to do it in the front garden but not in the back. This kind of thing is arbitrary and absurd. It discredits the law as well as those who make it.

So how has the government ended up in this unsustainable position?

The answer is that, having originally embarked on a sensible policy that would have avoided a lockdown, it did a 180-degree turn on the afternoon of March 23, without thinking of the wider implications. It was in a blind panic provoked by Professor Neil Ferguson’s “reasonable worst case” of 510,000 deaths. Quite apart from the fact that a worst case is by definition an unlikely one, few scientists now support this figure. But it has had disastrous consequences. It pushed the government into making a decision that mocks our humanity and treats us all as mere tools of government policy.

The government terrified people into submission by giving the impression that Covid-19 was dangerous for everyone. It is not. It attacks people with serious vulnerabilities. By most estimates, between 0.5% and 0.75% of infected persons die. Of those, 87% are over 65 and at least 90% have multiple causes only one of which is Covid-19, according to the Office for National Statistics. The death rate for those under 50 is tiny. For the overwhelming majority, the symptoms are mild. Yet Matt Hancock solemnly intoned that “if you go out, people will die”, in what was surely the high point of governmental hype.

The prime minister’s broadcast was supposed to be his Churchillian moment. Instead, we beheld a man imprisoned by his own rhetoric and the logic of his past mistakes.

The lockdown is now all about protecting politicians’ backs. They are not wicked men, just timid ones, terrified of being blamed for deaths on their watch. But it is a wicked thing that they are doing.

Lord Sumption is a former Supreme Court judge and last year’s BBC Reith lecturer