By John Coggon
Lord Sumption, a retired Justice of the UK Supreme Court, has been a prominent contributor to debates on government pandemic responses. Representing an uncompromising libertarianism, he is a consistent, highly critical commentator on restrictions regulations and associated official guidance. However, there are some perplexing tensions between his practical and ethical assumptions when critiquing coronavirus regulations and his reasoning in one of his most morally and politically significant legal judgments. I explore these in a new paper in the Journal of Medical Ethics, and highlight one such tension here.
Lord Sumption, the commentator, on restrictions regulations
Lord Sumption’s criticisms of coronavirus restrictions span various practical and principled concerns. Fundamentally, he argues that individual freedom and responsibility should be prioritised over government efforts to mitigate risks of transmission of disease by restricting social interactions. Liberty, not safety, should be the basic value. Legal coercion in coronavirus restrictions measures, therefore, is unjustifiable:
It is up to us, not the state, to decide what risks we are going to take with our own bodies. […] You can voluntarily self-isolate. You don’t have to go into the streets. You don’t have to go to the shops. People who feel vulnerable can self-isolate and the rest of us can then get on with our lives.
Such a position accords with Lord Sumption’s general arguments concerning political morality: he laments a system of government that is designed to protect welfare, and thereby expand the reach and function of the state beyond simply safeguarding individual liberty. The position rests on sweeping assumptions about the strength and realities of individual freedom and responsibility. These may be challenged with reference to the differential impacts of laws, policies, and social norms and structures. But strikingly, they may also be challenged by Lord Sumption’s own appeal to more nuanced practical-ethical analysis in his judgment in the case of Tony Nicklinson.
Lord Sumption, the judge, on free choice and end-of-life decisions
Tony Nicklinson’s case argued for a right to medically-assisted suicide. This would be for people who had an independently-confirmed, settled, and autonomous wish to die based on their profound suffering, but whose disabling physical condition meant they were unable to end their life without help. Lord Sumption ruled that recognition of such a right was a question for Parliament, not the courts.
Given his concerns that judges should not bring matters of moral and political judgment into law, you might imagine that that would—and, on his view, should—have sufficed for his judgment. However, not only did he take the opportunity gratuitously to advance moral and policy arguments, the substance of those arguments calls into question his libertarian assumptions and ideals.
Lord Sumption’s judgment includes calls for subtlety and nuance in understanding meaningful free choice, leading him to argue for paternalistic protections of personal safety over respect for individual autonomy. He reasons at paragraph 228:
The problem is not that people may decide to kill themselves who are not fully competent mentally. I am prepared to accept that mental competence is capable of objective assessment by health professionals. The real difficulty is that even the mentally competent may have reasons for deciding to kill themselves which reflect overt pressure upon them by others or their own assumptions about what others may think or expect.
Lord Sumption highlights in the same paragraph the idea of “indirect social pressure”. On his view in Nicklinson, even people who do not “feel vulnerable” may be vulnerable to risks of harm that they should not be legally free to navigate.
Although, for the purposes of his judgment, he just needed to say that the question in Nicklinson was one for Parliament, Lord Sumption brings such policy analysis into his legal decision itself. Even against the settled, autonomous wish of a person whose decision-making capacity has been positively confirmed, he thus provides that the law rightly prioritises safety over liberty.
Can both Sumptions be right?
Regarding blanket laws and coronavirus, Lord Sumption asserts that, without problem or complexity, a person can identify her own vulnerability and straightforwardly act to protect herself from harm if she so chooses. Questions of dependency, need, or forms of “indirect social pressure” do not arise. These assumptions are not obviously sustainable, nor are they obviously reconcilable with the less abstract, more practically-oriented reflections that he incorporates in his Nicklinson judgment.
The conflict between these positions calls into question the force and quality of Lord Sumption’s libertarian critique of coronavirus regulations. It simultaneously raises questions concerning his ruling in Nicklinson; especially his “along the way” remarks about morality or policy (such as those quoted above) that had no logical bearing on his ultimate legal determination. Rational incoherence—apparent or real, inexcusable or justified—can be a powerful enemy of (public) health law and policy. They may, however, influence too our analysis of the justifications given in critiques of the law, or in the judicial development of law itself.
Author: John Coggon
Affiliations: UK Pandemic Ethics Accelerator and Centre for Health, Law, and Society, University of Bristol Law School, UK
Competing interests: Professor Coggon is a member of The BMJ’s Ethics Committee, the Ethics Committee of the UK Faculty of Public Health, and the Nuffield Council on Bioethics. Within the past 36 months he is or has been a co-investigator on research projects funded by the Arts and Humanities Research Council, the Canadian Institutes for Health Research, and the UK Prevention Research Partnership, and awarded a grant by the Wellcome Trust to provide scholarships on the University of Bristol’s LLM in Health, Law, and Society. All views expressed are personal and should not be taken as being held by any of the above organisations.
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