He said he’d received many messages from confused and worried people, some quite heartbreaking, such as a new mother who needed a doctor to examine her burst and infected episiotomy stitches. Astonishingly, she was not offered an appointment, but was asked to send a photograph of her genitals to an unsecured practice email address. This inconceivably insensitive and intrusive request is no substitute for proper medical care.
‘People think physical contact is not allowed,’ he said. ‘There are sad cases of people thinking that they must only wave through the window at family, grandparents think they can’t hug their grandchildren. But they are allowed. And imagine the barbarity of not being able to say goodbye to loved ones on their deathbed. This creates permanent scars.’
Barrister Francis Hoar wrote an article5 arguing that the emergency regulations were incompatible with human rights. On reading it, a businessman called Simon Dolan, who also believed that the government had acted illegally and disproportionately, contacted Hoar. Together with solicitors Wedlake Bell they mounted a legal challenge against the government. They argued that the lockdown regulations removed the right to liberty by restricting people to stay in their houses, the right to a private and family life, the right to freedom of religion and expression of that, the right to protest and free assembly, plus the damaging effect on business interests and education. Another important part of the challenge was whether the government was right to make the emergency laws under the Public Health Act, and that the government had fettered its discretion by providing the five restrictions which all referred to the virus and did not refer to anything else.
I visited Hoar in his chambers. A portrait of his ancestor Sir Nicolas Tindal hung on the wall, a judge whose judgements protected many from execution by codifying the protection of insane defendants from conviction. This same passion was evident in Hoar: ‘I don’t mind being an outsider. There are a number of times that the establishment has got it wrong before. I’m in a profession where one is supposed to protect the outliers and the vulnerable. The great heroes of mine have often done that, even when the prevailing opinion was extremely unpopular. That’s what a barrister should do.’
I met Hoar before the ultimately unsuccessful Judicial Review and subsequent appeal. When we met he was uncertain but hopeful about protecting the vulnerable, but observed that ‘What is terrifying is that this wasn’t just imposed by governments, people wanted it. Of course people can choose to stay in their homes, but they wanted it to be law, to impose these restrictions on others.’
Sumption, Brimelow, Carlo, Jackson, Wagner and Hoar were united in their dedicated efforts to speak up for the law and democracy, during a year when most of Britain was more worried about loo roll than the rule of law, and had not understood the seriousness of what was happening to the country.
Sumption was visibly tired during our interview, ready for the holiday he was departing for the next day. Presumably the campaign he had waged had taken its toll. He took a few minutes during the interview to prune his beautiful garden. In the garden I asked him if he felt his public defence of civil liberties was a duty, or a mission. ‘No, it wasn’t a mission, that smacks of fanaticism. It was not my duty, it was the duty of politicians. The reason I have done it is that I thought this was an outrage which was deeply damaging to civil liberties. No politician was prepared to put their head above the parapet and say that this was disgraceful and profoundly damaging to our traditions and to the people who are least affected by the virus because they are young. Somebody had to say it.’ It may not have been his duty, and his interventions as a former Supreme Court judge have come in for criticism, but his campaign does seem to have been driven by a sense of moral duty and public service.
When Carlo and I sat in the lounge of her modest flat in London, she told me she worked 20-hour days in the early weeks, reviewing the legislation and producing Big Brother Watch’s monthly reports for parliamentarians. ‘I’d never let my team do this, but I had to put in those hours. I feel a sense of duty. I couldn’t live with myself if I didn’t do everything that I can. There were days I didn’t leave this room, I’d sleep for three hours on the sofa, because that’s all the time I could take.’
Sumption and Carlo live in the same city but are socially and economically miles apart. One is an ex-judge and OBE of considerable standing, and the other heads up a small NGO. Ordinarily, this should be an insignificant detail, but I found myself comforted by the fact that people across the spectrum of society were prepared to speak up, more concerned with character than reputation, and compelled by a sense of moral duty to do what they know is right, no matter how difficult.
Francis Hoar said the country needed more lawyers to do their part: ‘The rule of law does not exist in isolation. It depends upon lawyers and judges prepared to defend it against government power: not just through their cases but through condemning the state for stripping individual liberty. It is our responsibility as lawyers to do so.’
The law is ours. As Roger Scruton said, ‘English law is the property of the English people and not the weapon of their rulers.’ The British public needs to remember that. Johnson and Hancock, along with all Members of Parliament, are public servants. They have a duty to enact and use law wisely, proportionately and respectfully. Protecting the law and deserving its protection are one and the same. We should all be custodians.
Is it time to release democracy from quarantine and resuscitate the rule of law?
