Sumption read history at Magdalen College, Oxford, where he taught from 1971-74. In 1975 he was called to the Bar, and started as a tenant at Brick Court two years later. In the early 2010s, outside the legal profession and the rarefied world of medieval history, he was perhaps best known for representing the Russian oligarch Roman Abramovich against Boris Berezovsky, another oligarch who had sued him for £3 billion over a dispute about a subsidiary of Gazprom. The trial judge, Gloster J., found very firmly in Abramovich’s favour; things did not end well for Berezovsky.

In 2012, Sumption was appointed as a Justice of the UK Supreme Court. Most unusually, he did not sit in the High Court and Court of Appeal first. In December 2018, upon reaching the mandatory retirement age of 70, he stepped down, but remained on the Supplementary Panel of judges called in for occasional hearings. In the summer of 2019, however, he notified Baroness Hale, then the court’s president, that he did not intend to sit for the foreseeable future, owing to his public commentary on the constitutional implications of Brexit. In December 2021, he formally resigned. As he stated in an internal email, this was ‘in view of public criticisms which I was making of the government.’

In August 2015, the Guardian published a profile of Sumption by Wendell Steavenson in which he was described as ‘the brain of Britain’ and as ‘a uniquely British object, almost a metonym for the establishment, one of the guardians of a system that has provided the most stable democracy in the world despite never being written into the Constitution.’ In March 2021, the same newspaper published a review of his latest book, Law in a Time of Crisis, by David Runciman, professor of politics at Cambridge. Runciman commented that Sumption had lost his sense of historical perspective and that he sounded ‘more like a sclerotic judge than an urbane historian’.

During the pandemic, as this apparent volte-face by the Guardian suggests, Sumption was a divisive figure. For some, like Runciman, he was a ‘take-no-prisoners lockdown sceptic’; for others, he was a beacon of sanity in a time of collective madness. In a recent interview for the Freethinker, human rights lawyer Adam Wagner argued that Sumption’s response to the lockdowns was irremediably ‘libertarian’ in virtue of his being a ‘privileged, wealthy man’.

Part I of my interview with Sumption focuses on his criticisms of the way the pandemic was viewed and handled by the government, the opposition, the police, the scientific establishment and wider society. He also responds to Wagner. Part II, on Brexit, Sumption’s career as a lawyer, his role as an appellate judge in Hong Kong, and his fascination with medieval history, will be published in the New Year [now available here]. As usual, comments are open below.

~ Emma Park, Editor

There is a clear difference in the way you were portrayed by Wendell Steavenson (2015) and David Runciman (2021) in the Guardian, six years apart [see introduction above]. It seems like a dramatic change, even within the pages of one newspaper.

I do not think either of them necessarily represents the view of the Guardian, so I would discount both quite heavily.

Would you say that, in general, there has been much of a change in the way you have been perceived by the public, or portrayed in the media, between 2015 and now?

No, not very much. I have become well-known for different things over that period. Before I became a judge, and indeed afterwards, I was known for my scepticism about some aspects of human rights culture, and for earning a lot of money at the Bar. Since the lockdown, I have probably been best known as a ‘lockdown sceptic’. There is nothing particularly ‘sclerotic’ about a view that gives liberty a rather higher place in the scheme of things than the government has usually been prepared to allow, and I am completely unashamed of that. The ‘sclerotic judge’ of David Runciman’s imagination is probably the sort of person that rejoices in sending people to prison all the time. I have sought to persuade people that sending the entire population to a qualified version of imprisonment is objectionable.

During the pandemic, do you think that people who were politically left of centre gravitated towards support for lockdowns more readily than they might have done in other circumstances, just because the opposition to lockdowns was led by the right wing? Did lockdowns become yet another rallying point in the culture wars?

It is right that the issue became politicised. I do not think it was because opposition to lockdowns came mainly from the right wing of the Conservative party, because the opposition to lockdowns within the Conservative party did not become apparent until after the Labour party had declared itself. Initially it was the Labour party which politicised it, by becoming the consistent voice for more and longer lockdowns. That is regrettable.

A pandemic does not lend itself to analysis in left and right terms. It is therefore unfortunate that, at an early stage, it became a political issue in which, by and large, people did divide on left and right lines. The classic points of distinction between the left and the right had absolutely nothing to do with either the epidemiology or the other factors that went into the decision.

I am not a right-wing figure. I am unclassifiable politically and have voted for all three national parties in my time. On the political spectrum, I would put myself somewhere in the middle, but I object strongly to portfolio politics. People have often said to me things like, ‘You are against lockdowns, why aren’t you a Brexiter?’ This seems to me to be a perfectly daft question. I see no reason why, simply because a lot of people who agree with me on issue X also have strong views on issue Y, I should believe in issue Y as well. One takes each issue as it comes.

Going back to 2020, what was the original justification for the lockdowns and was this maintained over the course of the pandemic?

The original justification for lockdown represented a considerable change of front by the government, as with many governments in Europe. This was not simply because they had not advocated it before. Ever since the SARS pandemic of 2004, a great deal of preparatory work had gone into planning a response to the next pandemic. By and large there was a consensus among health authorities, both in this country and in Europe, that the principles should be, first of all, that you should not adopt one-size-fits-all solutions but concentrate state interventions on vulnerable categories; and secondly, that you should avoid resort to coercion and treat people like grown-ups. Both of those principles were thrown out the window in a moment of panic, not only in the UK but in other countries.

As to why it happened, what we know about it comes mainly from Dominic Cummings’s remarkable evidence to the Technology Committee at the House of Commons. But what lay behind it were some extravagant modelling exercises, of which the most influential both in this country and in some European countries were those of Professor Neil Ferguson and his team at Imperial College.

There were two basic problems with Professor Ferguson’s calculation. One is that he chose a case mortality rate at the top end of what was then thought to be the range. That has proved to be far too high. I would not blame him for that, because the case mortality rate was a very difficult thing to predict at that relatively early stage of the pandemic.

What I would blame him for is the fact that he made a completely unrealistic comparison. He compared the situation which you would have if you locked down the whole population, barring those who had to keep the wheels moving, with the situation that you would have if people did absolutely nothing to protect themselves. The latter was a completely unrealistic hypothesis. Human beings have a developed sense of self-protection. The idea that nobody would do anything to protect themselves unless they were made to do so by law was frankly absurd.

This prevented the government from making use of one of the most striking features of the Covid pathogen, which is that although it infected people fairly indiscriminately, it was highly discriminating in the categories that became seriously ill or died. If you were under 65 and did not suffer from a number of identifiable conditions, mainly concerned with the respiratory system, your chances of becoming seriously ill or dying were very small indeed. That distinguished Covid from, for example, Spanish flu, which was probably the closest parallel epidemic back in the beginning of the 20th century. Spanish flu had mainly attacked healthy people in their twenties, thirties and forties.

It has occasionally been suggested that I put liberty above all other things. This is not true. Liberty is an extremely important value, but it does not necessarily trump other factors. My concern about the government’s reaction was that they should have adopted a voluntary system coupled with objective and trustworthy advice directed mainly at the vulnerable categories. This would have been easier to do with Covid than it would have been with Spanish flu because the vulnerable categories were, for the most part, economically inactive. If the elderly and those suffering from serious respiratory conditions had been urged to shield themselves, if we had managed the problems about care homes better, we would have achieved a lower death toll from Covid-19 even without coercion. That would have enabled those who were not particularly vulnerable to serious illness or death to get on with their lives and continue in productive work.

Instead of which we spent what the National Audit Office has calculated as £376,000,000,000, of which less than a quarter was spent on improving health facilities – the rest was almost all spent on paying people not to work. So we suffered in three ways: we had less productive capacity; we wrecked the public finances; and we reduced tax revenues so that we eventually had to borrow at a relatively high rate. This was not a healthy state of affairs. We are living with the consequences now.

Even if one approves of the policies themselves, you cannot possibly approve of the method by which these decisions were made. It is clear from statements made by insiders, from Rishi Sunak to other less public sources, that there was no cost-benefit analysis at any stage. At no stage did someone say, ‘How much is this going to cost?’ They did not ask what this was going to mean in terms of children’s lost education, or of other health conditions, mental health, cancer and so on.

It seems to me to be a fundamental rule of government not to make radical decisions affecting an entire population without knowing what the results might be.

Why did they never ask themselves that question?

In the beginning, it was because they were in a panic, and because the decisions were being made by a very small number of people without proper discussion. I also suspect, although this has not been verified, that they thought that if they locked down the population it would be for a shorter time – perhaps six weeks. I do not think they ever envisaged that it would continue on and off for two years. But once they had started, they found themselves compelled to go on. It is extremely difficult, when you have inflicted untold loss and misery on an entire population, to say, ‘On reflection, we have changed our minds because it does not seem such a good idea after all.’

It was the sort of decision where the decision itself commits you to continue. I think they found themselves caught up with the logic of their own arguments and with the results of the fear that they quite deliberately engendered in order to improve compliance with the lockdown.

You might have thought that the tactic of engendering fear was undemocratic and authoritarian.

It is undemocratic because experience shows that you can manipulate people relatively easily if you frighten them enough. We know that this was a deliberate policy because Sage’s minutes show that. Adam Wagner has suggested that I have misunderstood the relevant Sage document. I do not think I have.

The Sage document in question is not concerned with the question, lockdown or no lockdown. What it is saying is some people are not very vulnerable to this pathogen, and those people might not be sufficiently frightened to protect themselves. Therefore what we must do is to frighten them some more. In other words, we must encourage a degree of fear which is not justified by the real vulnerability of those people. That is an undemocratic thing for a government to do. I do not believe that these are wicked people, but they sometimes found themselves driven by the logic of their own decisions to do wicked things. That was certainly one of them.

Adam Wagner and others have argued that shielding the vulnerable but letting others carry on working would not have prevented the virus from spreading through everyone. What is your response to that?

How does he know? The argument seems to be that, if the healthy had been allowed to get on with life, more of them would have got Covid, which is true, and that would have spread to the vulnerable, which is not necessarily true. It would only have happened if the vulnerable had not shielded themselves. That is an implausible hypothesis.

If we had adopted a voluntary policy, we would probably have had a death toll which was maybe slightly in excess of the one that we had. But you have to compare that against the catastrophic collateral damage. At the moment we are seeing death rates of about ten per cent in excess of normal. These are people dying from things other than Covid. The principal victims are cancer and dementia sufferers. Undiagnosed and untreated cancer has been a serious problem as a result of lockdowns, not just in this country, but in nearly every European country. There have been a number of studies that demonstrate that clearly.

The impact on dementia has been very significant indeed. Dementia deaths exceeded Covid deaths for most of the pandemic. Dementia is aggravated by loneliness and a lack of mental stimulation. That seems to be the most likely explanation for a noticeable spike in dementia deaths, which is still continuing. I had an elderly relative whose incipient dementia had been kept at bay by stimulation. During the lockdowns, the lack of stimulation, the end of her bridge clubs, the loneliness, caused a precipitate decline. I know lots of people who can say the same of members of their family.

This is a tragedy. It is a collateral consequence which they never thought about. I think that it would have been worth putting up with a marginally higher rate of illness and death from Covid in order to spare ourselves the catastrophic consequences that we are suffering at the moment. And those are just the consequences for people’s health.

The educational consequences have been appalling. The brighter pupils who are better supported by their families – generally middle class families – will undoubtedly get over it, but the pupils who are more challenged, who come from difficult family backgrounds, will probably never get over it. Their education, their acquisition of social and industrial skills, has been permanently retarded.

In his interview with you, Adam Wagner described me as a ‘privileged, wealthy man’, and I am – as indeed is he. That is why it is important that people like us should be prepared to speak up for the principal victims of the lockdown, to speak up for those who live in crowded accommodation, at the bottom of the income scale, with children in educationally challenged circumstances. The lockdown is generally acknowledged to have aggravated levels of inequality in Britain, which were already high.

And you would say Adam Wagner is in a similar position.

Of course he is in a similar position. I think extremely well of his book. My complaint about it is about the things that it deliberately does not cover. The subtitle is ‘How we lost our freedoms in the pandemic and why it matters’. But he will not say whether it is justified, at least not in his book. He goes a bit further in his interview with you.

If the loss of liberties was justified, then why does it matter? Wagner’s approach devalues the whole issue into a row about procedure. But it is not just a question of procedure: it is much more important than that. The loss of liberty matters unless it is justified. It matters because of the collateral consequences, and because it was simply unnecessary to adopt such extreme and unproven measures.

 I am not a lone voice crying in the wilderness on this. There are plenty of epidemiologists who would say exactly the same. They are not just people, like Sunetra Gupta, who have been unfairly and outrageously abused by some of the scientific establishment.

[In the US, compare Twitter’s deliberate suppression of the views of Jay Bhattacharya, a professor at the Stanford School of Medicine – who also discussed Covid policies with Sumption. – Ed.]

Take The Year the World Went Mad, by Mark Woolhouse – the title tells you what his attitude is. He was on the Sage modelling group SPI-M-O and the Scottish equivalent of Sage. He is Professor of Infectious Disease Epidemiology at Edinburgh University. As time goes on, people are becoming more conscious of the catastrophic collateral consequences of lockdown, and of the significant strand of scientific opinion which was squeezed out of the groupthink of Sage.

When one thinks of science and the scientific method, one thinks about it as being about disagreement, developing theories, and testing them through experimentation, in a continuous process of refinement. But during the pandemic, there was a widespread tendency to assume that ‘following the science’ meant lockdown, and that was that. Was there a failure here?

The basic proposition in science is that all ‘facts’ are provisional, until better researched, better informed or better reasoned hypotheses come to light. There is no such thing as a definitive answer. That is why scientists disagree about many issues, and disagreed about the appropriate response to Covid. There is not simply ‘the science’. There are many different views.

More fundamentally, the government has no business to just ‘follow the science’, because the science is only one relevant factor in an extremely complex decision that involves many non-scientific elements. You have to take into account the educational, economic, financial and social consequences of the restrictions. If you are only looking at one among a number of factors, you are almost certain to make serious mistakes – as indeed they did.

In January 2021 you appeared on the BBC’s Big Questions. You outraged public opinion by telling a woman with cancer that her life was ‘less valuable’ than others’. You also said, ‘All lives are not of equal value – the older you are, the less valuable yours is, because there’s less of it left.’ Could you clarify what you meant by this in the context?

I cocked up on that interview because I was at cross purposes with Deborah James. We were actually talking about slightly different things. It was not my intention to suggest that the lives of some individuals are morally less valuable than others. I made my peace with her but I am sorry about the impression that I unintentionally gave.

I was trying to make a serious point. Governments cannot make policy decisions on the basis of their assessment of the moral value of particular individuals. They have to look at the position as a whole. When you have to decide how resources should be used, and there are not enough to go round, it is basic health economics to try and find some metric by which you can measure and compare the consequences of different policies. The standard way of doing this in most countries is to use what are called ‘quality adjusted life years’ (QALYs). If you have to choose between a policy which protects some people and a policy which protects other people, you need to be able to compare the impact of the two.  ‘Quality adjusted life years’ is a tried and tested way of doing it, which has been at the heart of National Health Service policymaking for decades. That was the point I was trying to make.

If you have a disease that primarily affects people older than 65 – actually, very largely people older than 80 – people who have only relatively few years left, one question that you have to ask is how much damage should you inflict on younger, less vulnerable people in order to shield them. It is a particularly important question to ask if there are other ways of dealing with the problem which help the vulnerable without damaging the rest.

For example, permanently damaging the educational prospects of young children in order to extend the life of people in their eighties is not good policymaking. You have to work out what the impact of what you are doing is on every class of society and make difficult choices.

Do you yourself have any religious beliefs that influence your views about life and death?

I am an un-pious practising Anglican. I do not believe that that has any impact on my views about Covid or any other issue of public policy.

Some have argued that the NHS has become an object of quasi-religious worship in recent years, especially during the pandemic. Would you agree?

Saving the NHS was a good propaganda point for the government. All the banging of pans and the signs on people’s houses indicate that. What has been quite striking is that people are discovering that the NHS is actually very badly managed, that its low levels of morale, although partly due to underfunding, are due to many other much more deep-rooted malaises, and that it needs root-and-branch reform. The tendency to treat it as an alternative to the established church has declined noticeably in the last couple of years. But during the pandemic it did become a totemic thing, which distorted the debate and closed people’s eyes to some important dilemmas.

To what extent would you say that there was a loss of humanity during the pandemic?

The most fundamental characteristic of human beings is their capacity to come together. We are social animals. It is the foundation of our whole civilisation. If you coerce people so as to obstruct interaction between human beings, you are going to dehumanise them. That is why the government’s measures amounted to a sustained assault on our humanity. They attacked the most important thing that makes us better than animals.

From early on in the pandemic, you criticised the police for their abuse of power. What were some of the most egregious examples of that abuse of power?

My first public statement on the point was provoked by the extraordinary behaviour of the Derbyshire Police, who, for some reason I never understood, seemed to have been at the forefront of this. But this mainly happened at the early stages of the pandemic. The government issued enormous quantities of guidance which went a lot further than the regulations. Therefore it is perhaps understandable that people were confused about what exactly was law and what was the government’s advice or request. The position was improved when the College of Policing issued a single page sheet of paper, which basically said what the police could and could not do. They said, you can only enforce the law, you cannot enforce the government’s guidance. Most of them behaved reasonably after the first few months.

Some of the police interventions were outrageous. One Chief Constable threatened to go through people’s shopping baskets to make sure they had not bought something inessential, although food shops were allowed to open for essential and inessential products alike. The police did overreach themselves, mainly in the early period. They should have known better, because the police have legal departments to tell them what the law is.

In December 2018, you reached the retirement age for full-time Supreme Court justices (70), but remained on the court’s supplementary list, which you would be eligible to do until you reach 75. However, you chose to stop hearing cases in 2019, and then resigned altogether in January 2021. What were your reasons for doing so?

I heard an appeal in a shipping case in spring 2019. In the summer of August 2019 I began to comment on the constitutional implications of the parliamentary rows over Brexit. I was due to hear a patent appeal in October, but I wrote to Lady Hale and said, I think I should come off the panel listed to hear that appeal because I had been commenting publicly on things that, although legal, were politically controversial. I asked informally not to be listed for the time being. When it became clear that I had other issues with government policy, I formally resigned from the Supplementary Panel of judges who could be called on to sit. It seemed to me unlikely that there would ever be a time before I was 75 when it would be appropriate to list me.

At that point, did you think it was more important to criticise what the government was doing than to be a judge?

I wanted to be free to comment on the constitutional position of the government on Brexit, and later on the wisdom, or lack of it, of government policy on Covid. Commenting on the constitutional position of the government on Brexit was the sort of thing that a former law lord would have been at liberty to do in the days when law lords were members of the House of Lords. So that was relatively marginal; I was taking an ultra-cautious view.

I think the consensus of judges would have been that ordinarily you should not be as openly critical of government policy as I was on Covid. Broadly speaking, I accept that. But I believe that there are some issues which are so important, not only for the development of current policy, but for the future of our country, that you have to be prepared to stand up and speak about them – especially if nobody else is doing so.

How did it feel to be one of the very few respectable people who spoke up against the lockdowns during the pandemic?

It felt quite lonely, although I received plenty of ‘undercover’ support. I got a large postbag. Many of the letters were from NHS people who firmly supported what I was saying, but said they would not dare to say it themselves because their jobs would be in danger. I got letters from politicians and civil servants saying much the same. In the case of the politicians, I thought this was rather shameful. So I was not as lonely as all that, but it sometimes looked that way.

As far as you are aware, to what extent did members of the Bar support your views about the lockdown?

I do not know. Most of the ones who spoke to me supported my position. But of course people are more likely to speak to me on the subject if they agree than if they disagree. I would not discount the possibility that there was a majority of barristers quietly snarling in corners.

What should the role of the judiciary be in a crisis like the pandemic? And how far did Britain’s judiciary fulfil that role in this case?

I think the judiciary has exactly the same role in a crisis as at any other time. The famous case study is Liversidge v Anderson (1941), about the administrative detention of people whose activities or opinions were thought to be unhelpful to the war effort during the Second World War. The relevant regulations said that the Home Secretary could intern people if he had ‘reasonable cause to believe’ that they were dangerous. The House of Lords said this meant that the Home Secretary could intern people if he thought they were dangerous, whether or not they actually were. This is now widely regarded as craven. There was a famous and much admired dissent by Lord Atkin who said – and this is now orthodoxy – that the laws are exactly the same in peace and in war, in crisis and in non-crisis. He objected to the motto silent leges inter arma (‘the laws are silent amidst the clash of arms’). His position is now regarded as the true one.

Did the judiciary live up to Lord Atkin’s statements during the pandemic? No, I do not think they did. The decision of the Court of Appeal in Dolan (December 2020) was badly reasoned. It is a fundamental constitutional principle that if you are going to have a regulation which authorises breaches of fundamental rights – and there is no doubt that locking people up is a breach of fundamental rights – the regulation has got to spell it out in letters of brass. You cannot rely on general language, because there is too great a risk that the more extreme consequences of that language will have been overlooked by people in the course of the passage of the relevant legislation through Parliament. That is a principle which had led the courts, time out of mind, to strike down Acts which are radical, but justified only by general words. It was a principle that the Court of Appeal shied away from applying when they interpreted the Public Health Act 1984. That was an unfortunate failure.

[See Sumption’s article, ‘Covid-19 and the courts – expediency or law?’ in the Law Quarterly Review; and this article by two law students at Oxford.]

 The Supreme Court compounded the failure by refusing to entertain an appeal [in Dolan]. My own belief is that the reason why they refused to entertain an appeal is that, at the time, there was much muttering in the Conservative government about the possibility of abolishing the Supreme Court, in revenge for having decided the two Miller cases against the government. I think they were afraid that they would inflame anti-Supreme Court tendencies in the government and parts of the press if they were to question what the government was doing about Covid.

The truth was that the government had the power to do what it did, but only under a different statute: not the Public Health Act, but the Civil Contingencies Act 2004. That was important, because the Civil Contingencies Act deals with emergency legislation and allows the government to do that sort of thing, but only subject to tight parliamentary supervision. The government escaped parliamentary supervision by relying on the wrong Act. This is something that is well brought out in Adam Wagner’s book, although he does not go so far as to say that the decision in Dolan was wrong. I think that it was wrong.

[Further discussion of the above Acts in Law in a Time of Crisis, chapter 12.]

The judiciary criticise governmental abuse of power when the occasion justifies it. I do not think they would have been criticised if they had said that the government had used the wrong Act. I do not think that they would have been criticised if they had held that in such fundamental matters the government must submit to democratic control. People would have blamed the government for using the wrong legislation, rather than the courts for pointing the fact out. The courts are more sensitive to the political atmosphere than they admit, but they ought to have come up to the plate when they were tested. They did not. In the event of course it made no difference, because the government’s measures had opposition support, but the principle matters. Oppositions will not always be so cowardly.

What can we as a society do to ensure that future governments will never be able to exercise this type of near-absolute power again?

I think it is unlikely that we will go into another lockdown, even if similar epidemiological conditions arise again. It is too much to expect the government to admit that it was a mistake. It is too much to expect the opposition to admit that their position was a mistake. We are never going to get any humble confessions, but people are now much more conscious that you cannot interfere with the basic mechanisms of society without inviting really serious economic, social and medical consequences. The fact that we are now in the midst of a financial crisis, which would probably have been avoided if we had not bust ourselves on Covid, has been a sobering lesson, as indeed the present Prime Minister pointed out during the pandemic. I think we are likely to be more cautious in future.

The problem is that the defence of liberty is a state of mind. The barriers to despotism are more psychological than legal. It is often said that certain things are unthinkable: that you would not use your power in that way even if you had it. But once you do, then what was previously unthinkable has become thinkable. It is very difficult to row back from that. The psychological barrier has gone, the dam has burst, and the psychological implications for other crises, possibly unconnected with health, will be with us, I fear, for a long time.

One way to resist this psychological lowering of the ‘barriers to despotism’ is presumably to keep on talking about what happened during the pandemic and try to come to terms with it.

That is why I am talking to you. It is always tempting to say, it is over now – let bygones be bygones. But I do not think we should do that. We have to learn lessons from experience. The fact that we are not in mid-crisis now does not mean that we should stop learning.

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The post ‘The defence of liberty is a state of mind’ – interview with Jonathan Sumption, Part I appeared first on The Freethinker.

Folarin Iman was criticised in 2019, when the Free Speech Youth Advisory Board she helped to found, and which would ultimately become Free Speech Champions, was reported in the Guardian to be an ‘astroturfed’ front for the Free Speech Union, founded by the right-wing journalist Toby Young. In the 2019 general election, she stood (unsuccessfully) as the Brexit Party candidate in Leeds North East, gaining 1,769 votes. Last year, she became a presenter at the newly founded GB News, which has been criticised for its right-wing bias and its approach to free speech.

In 2020, she founded the Equiano Project, which describes itself as ‘a forum to promote freedom of speech and open dialogue on the subjects of race, identity and culture.’ In 2021, she was appointed as Trustee on Youth Engagement at the National Portrait Gallery by Johnson’s government. The Guardian and the Art Newspaper were quick to draw attention to this appointment, because of her association with GB News.

Folarin Iman is now no longer involved with GB News or the Free Speech Union, nor a member of any political party.

I met her over coffee in the Blue Boar Pub, Westminster. We discussed the origins of the Equiano Project, what ‘racism’ means, the Black Lives Matter protests, and the problems with ‘decolonising the curriculum’. Other topics included her path to where she is now, her British-Nigerian roots, and whether she still thinks Brexit was a good idea. The interview also raises the question of which orthodoxies – on the left and the right – can be criticised by whom. Comments are open below.

~Emma Park, Editor

How would you describe your childhood or teenage years – were there any defining moments?

I grew up in Kent, but for the first two years of secondary school, I went to a private boarding school in Hertfordshire. I left halfway through Year 8 because I was homesick, so there was a panic to get me into a new school. I ended up going to one of the local comprehensive schools, which was a culture shock. For sixth form, I went to a grammar school. This had a big impact because it made me reflect on how your social, cultural and economic status shape your sense of what is possible for you.

Boarding school kids all believe that they can achieve anything – and they are right. With many of the other [state schoool] kids, their expectations and ambitions were less, even though they were intelligent and capable. Going to several different schools, I also had to start again repeatedly in terms of friends, so I was used to being the outsider and trying to persuade people that I was coming from a good place. Also, my mum has always been political. She has been involved in campaigns in the UK. My father is also Nigerian, but I have not spoken to him for ten years.

What is your mother’s take on things politically?

She is small-‘c’ conservative. She is a British Nigerian, but contrary to what people might expect, she is not an evangelical Christian, but an atheist, so she is very independent-minded. Mum got us debating, discussing and thinking independently. She worked really hard in multiple jobs to send me and my sister to a good school. That has shaped my thinking about the importance of hard work, not making excuses for yourself, and not seeing yourself as a victim, even if there are things that you are being victimised by.

My mum was born in Nigeria, but I have only been to Nigeria twice. Despite that, I still feel connected to it. I love the music, a lot of the history, elements of the culture – not all. I see myself as British Nigerian, even if I do not speak the language. I have spent time studying Yoruba. I think it is part of the experience of being a first or second-generation immigrant, of trying to locate your place in the world.

Do you have any religious beliefs?

I would describe myself as agnostic. I have never had a practising religion. I grew up around evangelical Christians, but I studied Arabic at university, so I spent a lot of time around Islamic culture and lived in Morocco.

What has your path been from university to where you are now?

Originally I thought that I would go into Middle Eastern foreign policy. But I started university in 2015, and those years, 2015-18, were a huge, angry time politically. Trump came to power, Brexit happened. The populist movements, the campus free speech debates – it seemed like an important time to participate in the public conversation.

Once I left university, my first job was working for Index on Censorship. I was a project manager, where I was able to create a free speech project from scratch. I met journalists and writers, and spoke at events.

During the Black Lives Matter protests of 2020, I felt a moral responsibility to present a different perspective. What was being presented as unquestionable about British society and the experience of being a black person in British society did not reflect my experience, or that of my family, or of all the people that I knew. I had a small platform and decided to start writing about these things. And to my excitement, it got picked up.

In 2019, you were the Brexit Party candidate for Leeds North East. Do you still think Brexit was a good idea?

I did not actually vote for Brexit. I did not vote in the referendum either way, because I was in two minds. On the one hand, I supported the principle of greater sovereignty and democracy, but I was worried about the people that were leading the Brexit campaign and whether or not their vision of what Brexit meant reflected the kind of society that I wanted to live in.

Once we voted for Brexit, I did believe that it was imperative to implement it. That is why I stood for the Brexit Party. That surprised people, because I was a young person. I would probably get my head chopped off by my friends and colleagues if I said that I had Brexit regret. I do not know if Brexit was a good thing, or at least, I think there is a lack of discussion about what we need to do to make it work.

Where would you place yourself on the political spectrum?

This may surprise people, but I see myself as a bog-standard liberal. All the positions I have taken, contrary to popular belief, have been from a liberal standpoint. To me, Brexit was a question of sovereignty and democracy, which is a liberal argument. I have criticised identity politics because it contradicts the liberal ideals of colour-blindness, individual freedom of conscience and autonomy.

But isn’t GB News a right-wing platform?

It is probably true to say that there is a disproportionate number of people right of centre who present and appear on GB News. However, they are committed to platforming different viewpoints and oftentimes people on the left will just not go on, which is unfortunate. For example, Owen Jones and Aaron Bastani have been invited, but will not go on. That only perpetuates the type of people that are there.

If you are someone that critiques the orthodoxies, you may just have to accept being labelled right wing. I know many liberal-minded people on the centre left who are called ‘right wing’ because they defend free speech. That is unfortunate, especially when we live in an ecosystem of ‘guilt by association’.

Why did you found the Equiano Project, and what are its aims?

I founded the Equiano Project in 2020. It was something that I had been thinking about before the Black Lives Matter movement. But it became urgent then, because we were being told that all black or ethnic minority people felt that Britain was a fundamentally racist society and that race and racism were really the primary way in which they viewed the world and related to each other. That was just not true. The Equiano Project was founded in order to host a series of discussions and debates about these issues: decolonising the curriculum, whether liberal ideals can inform solutions to questions of racism, whether we need a new narrative on race, and the causes and consequences of racial disparities.

The first event was entitled, ‘Is it time to forge a new narrative about race?’ It was a success. Speakers included a wide range of people, but all committed to liberal ideals. After that, it expanded. People would ask us to speak at schools and cultural institutions like museums and galleries, and try to navigate the complex cultural and moral questions that people were grappling with about race, due to the public pressure to be seen to be doing something. We continue to open up the space to discuss these issues from a wide range of perspectives.

Who is the project funded by?   

We have only been funded by individual donations from ordinary people. That is where all of our money has come from.

Have you received much backlash over this project?

Surprisingly, no. I think that is because I have been careful to involve diverse perspectives, to understand where the viewpoint I disagree with is coming from, and to counter that in as nuanced a way as possible.

What is ‘race’, what is ‘racism’? How are they related to each other?

My idea of being anti-racist is to abolish race. ‘Race’ is the categorisation of human beings into biologically distinct subcategories. That is what we are doing when we see each other as permanent, distinct races and treat each other differently as such. The problem with contemporary anti-racism is that its proponents take race to be real in an important sense. They see different identity groups as having intrinsic meaning. They attribute meaning to white identity, and they reverse-attribute meaning to black identity by seeing it as morally superior and innocent, and ‘whiteness’ as a force of domination. I do not attribute meaning, positive or negative, to any racial category. I believe in the goal of achieving a colour-blind society.

‘Colour-blind’ in what sense?

In a political sense: that we should not treat each other differently from a political standpoint on the basis of race. It is equality in the true sense of treating people equally. That does not mean that we cannot recognise our distinctiveness. I am proud of my Yoruba heritage and it has a history, a culture and a legacy that has meaning to me. I do not need my self-esteem or my identity affirmed by the state or by the education system. When you enter society, you enter into something that is beyond race: a sense of citizenship, something universal, a shared civic community where we participate as equals. That, to me, is democratic. We are all capable of entering into it, and we all should have the ability and capacity to shape it.

How would you define ‘racism’?

‘Racisim’ is prejudice and discrimination against people based on their real or perceived race, and also the attribution of morality or moral values based on someone’s perceived race. Even the statement that ‘whiteness’ is a force of domination I would class as a form of racism, just as I would class the discrimination in employment against a black male as a form of racism. Having simple definitions is really important for us to be able to understand what these problems are.

You recently did an investigation into the trend in schools to ‘decolonise the curriculum’. Could you say a bit more about that?

‘Decolonisation’ is the removal of a colonial power from the state governance of a particular country. Decolonising has nothing to do with the extent to which certain ideas or ways of behaving are or are not influenced by a previous colonial power. The attempt to expand the definitions of colonisation and decolonisation is damaging. For example, if an African society, such as Nigeria, thinks parliamentary democracy is a good thing and it works better than the earlier system of clans and chiefdoms, that is not colonial, that is them making a judgement using their own agency. The attempt to attribute huge sections of modernity to colonialism in a pejorative sense is deeply corrosive to the intellectual, political and moral development of African-descended people.

The liberal ideals of free speech and democracy are based on the moral principle that we are capable of weighing up competing arguments and coming to our own conclusions. We are moral agents. If you believe that those ideals are white only, you are effectively saying that only white people are moral agents. That is a deeply racist and morally objectionable way of thinking.

The kinds of things we are seeing young kids being taught at school are pernicious.

What schools have you been looking at for your investigation?

They were state and private schools across the country. At the Equiano Project we get emails from parents on a regular basis, and even dissident teachers, who are worried about what is being taught. Other organisations describe experiencing the same thing: curriculum materials that promote a form of racial essentialism, a narrow, simplistic idea of society. One of them was that ‘racism started when white people decided to oppress black people’. For a kid, that is very confusing – it is open to misunderstanding and even to a sense of insecurity and self-loathing. All of this is being done in the name of anti-racism. But I think we have gone a long way from knowing what our foundational values are. We are morally confused.

How should these issues be discussed at primary school?

They should not be discussing them at primary school. What we need to be doing is promoting values that we all agree with: being kind, treating people as you want to be treated, not judging a book by its cover. These things do not racialise kids.

The Equiano Project invokes the values of ‘freedom, common humanity and universalism’. Can these values unite people across the political spectrum and around the world?

Yes. It was these values that won out in the 1960s civil rights movement. Martin Luther King, like Frederick Douglass before him, argued for our common humanity – so as to render racism absurd from a political standpoint. People forget that in America there are still people alive today who lived through segregation, or who remember how, in Britain, you would once be spat at on the street if you were mixed-race. Nowadays, racism is highly socially taboo. By and large, people feel like they belong. That is due to the ideal of common humanity, not because of identitarian activism.

When you make blanket statements and seek to homogenise race, and try to funnel everyone’s experience through that single lens, it is divisive, because that is not how people see themselves. People are complex, with a web of desires, relationships and interests.

Have you ever experienced racism yourself?

Of course. There is not a single ethnic minority person in this country who has never experienced racism. But did it define me? No. Did it completely traumatise me? No. If someone shouts the ‘n’ word at me, I actually feel more sorry for them. But has it happened a lot? No.

 What is critical race theory and what is your view of it?

Critical race theory is an academic school of thought with many serious scholars, like Kimberle Crenshaw, Derrick Bell and Richard Delgado. It emerged in the 1980s as an attempt to explain why there was still de facto racial inequality in America, when there was de jure equality and segregation was illegal. This school of thought attempts to understand this disparity by arguing that liberal principles, such as equality under the law, freedom of expression, and colour-blindness, are not politically neutral or universal ideals, but are couched in white Western racial superiority, and their application reproduces inequality. They argue that racialised power structures shape outcomes.

But I think they are wrong. To suggest racism is permanent or inevitable is a cynical and pessimistic way of viewing the world.

How far does politics come into your role as Youth Engagement Trustee in the National Portrait Gallery?

As a gallery that is about history, there are debates at board level about who we consider important, and what we say about those people portrayed in the gallery. These debates reflect the debates going on in wider society around contested history. Some people want us to emphasise that empire is a moral evil, whereas others may take a different approach.

My argument is that we need more history, not less: the past is as complex as the present. Whilst there are examples of great triumph and bravery, there are also examples of extraordinary suffering and brutality. All of those things tell us about our humanity, and therefore we should keep them all. That is an honest approach to history. I am not for removing portraits or being too moralistic in how we describe them. We should all be able to make up our own minds about the actions of certain people.

Is it appropriate to judge the past by contemporary moral standards?

I do not think the present should be made hostage to the future or the past hostage to the present. For all we know, in fifty years’ time we are going to be judged as morally reprehensible for factory farming. Our ancestors probably knew a lot of things, and were probably more interesting and smarter than us in different ways. They had the Enlightenment – we probably have a counter-Enlightement! I do not believe in projecting our contemporary moral values onto the past and then attacking the past for not meeting our present moral expectations.

In the project which became Free Speech Champions, the Guardian reported that some of the students originally involved left because they said it was too close to the Free Speech Union. What is your response to this? 

Free Speech Champions is still going strong. Many of young people that are involved in the project are now working for magazines and newspapers. In the early days, the question of how to create free speech in such a politically heated climate, for a generation who have only ever associated free speech with harm, was a difficult challenge. Ultimately there were different views about what constituted free speech. I tend to take the broadest view of free speech, whereas other people have differing views, and that led to some of them not wanting to continue. Some of the people who originally left have since changed their minds and have participated in some of the project’s events and initiatives.

Is there a problem for a free speech movement like yours, that you may not be able to include enough people on the left?

Out of all of the young people in FSC, a minority are on the right. That is partly because the right has a problem with free speech. This is that, by ‘free speech’, they often mean ‘my free speech’ – ‘I want to say what I want on race,’ ‘I want to say what I want on gender.’ But actually, free speech as an ideal to expand open enquiry, for experimentation, for exploration, does not always attract people on the right.

For me, free speech is about liberal culture and liberal ideals. It is an open question how far many conservatives subscribe to those ideals. In FSC, most of the young people are politically homeless. There are several from the old left – the Bennite left; others are disaffected liberals. Unfortunately, if you defend certain things, someone is going to label you right wing. But you have to keep standing up for what you believe in.

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The post Race: the most difficult subject of all? appeared first on The Freethinker.

Since 2019, he has hosted the Better Human Podcast; its episodes have covered many of the difficult issues that arose in the pandemic, including the limits of free speech, older people’s rights, the vaccine pass, and the finer points of the lockdown restrictions. In 2020-2021, he was Specialist Advisor to the Joint Committee on Human Rights Inquiry into the government’s response to Covid, and often appeared on television and radio to discuss the latest rules.

Wagner is the author of Emergency State: How We Lost Our Freedoms in the Pandemic and Why it Matters.* His book examines the way in which Boris Johnson’s government used and expanded emergency powers during the lockdown, and the impact on our democracy. It is likely to be significant both as an historical record and an informed legal analysis of the limitations of the UK’s political system.

I met Wagner in September at a café on the Finchley Road, somewhere in the outer reaches of north London. One of his children was ill, and he initially wanted to sit outside, in case he was contagious; I was more concerned about traffic noise. We settled on a table in the emptiest corner of the room.

Over a cup of tea and a bottle of water respectively, Wagner spoke to me about why he wrote Emergency State; whether lockdowns were ‘the worst option apart from all the others’; his ‘Liberty debate’ with Jonathan Sumption at the Oxford Union; why Labour did so little to challenge Johnson’s policies; and why legislative reform is needed to guard against executive overreach in the future.

Emergency State was published on 13th October. The national press responded with its customary impartiality: the Guardian gave Wagner space to write in effect his own introduction, while the Telegraph published a three-star review by Sumption. As always, we leave readers to judge for themselves; comments are open below.

~ Emma Park, Editor

What are the essential characteristics of an emergency state?

An emergency state is really what happens when the state contorts itself to deal with an emergency. It can do that for a very short period, it can do it for a long time – every emergency is different. But the features of an emergency state are quite similar. The main one is that the people who are exercising the power become a much smaller group. In a democracy, power is ordinarily dispersed quite widely. But in an emergency state, power becomes very concentrated, and that has all sorts of consequences.

The positive consequence is that the state can deal with the emergency. In such a situation, the state does need to change. It needs to make quick decisions, and do things that are extreme, such as suddenly allocating enormous resources to some new threat, and taking away resources from something else. It becomes a command-and-control structure which is much more like a military operation than a democratic state. This is necessary because if you do not move quickly and drastically, you might not be able to repel the army that is infiltrating your borders – or to deal with the virus just about to hit your shores.

The negative is that, as with any state where power is concentrated and the democratic and deliberative safeguards are taken away, there are some dangers. The reason democracies are big, complicated and slow is because you need a huge amount of information to flow between what is happening on the ground and the people in charge. If you do not have that information flow, there is no prospect of the person at the top knowing what is going on in every city in the country and amongst millions of people. So you get simplicity, but on the other hand you get simple-mindedness. You have just a few people who think they know the right answer. And when such people are able to impose their view on millions of people, it usually ends badly, because people tend to be wrong about what they think the right answer is. It takes a huge amount of effort to be right.

When you put a few people in charge of a state, it can also lead to corruption and bad decision-making. The inputs in a normal democratic state come through committees, parliament, councils, the media, and so on. In an emergency state, which is small and concentrated, you just have a few guys. I would say it was four: Boris Johnson, Rishi Sunak, Matt Hancock and Michael Gove. They were the Covid committee throughout the whole crisis. They may have been joined by officials, but they were the decision-makers. There was some cabinet involvement, but there was no parliamentary involvement in any of those decisions.

Some people have said that SAGE had too much power, that the politicians involved used ‘this is what the scientists say’ as a way of abdicating their own responsibility. How would you respond to that?

I have read a lot of SAGE minutes. I think that generally, SAGE presented options, and the politicians decided what to do. One of the points I make in the book is that this ‘following the science’ mantra became a bit of a figleaf. I am not a scientist, but it seems like a decent enough system. They make recommendations, the government either accepts them or does not. But the problem is, it was only ever in one direction. SAGE would meet, they would publish their minutes of their meetings. These would then go to the Covid cabinet committee, which would make its decisions – but we would not know what factors were going into that decision-making. And new laws got spurted out at the other end.

There were over 100 new laws that created the Covid state. The lockdowns, the gathering restrictions, travel restrictions, self-isolation restrictions, travel rules, Covid passes, hotel quarantine, local authority powers – all this sort of complex interwoven set of laws that would come out roughly about once every five days, on average, through the period that I looked at, which is 14th February 2020 to 18 March 2022 – 763 days. That was the Covid state: from when the emergency declaration was made to the end of the emergency declaration, when laws were made by Matt Hancock signing a piece of paper – all under the Public Health (Control of Disease) Act 1984.

During that period, the way those laws were made was very opaque. Usually you would either hear about them at the moment they were published, which was sometimes five minutes before they went into force, and once three days after. Sometimes, if they were pre-planned, there would be a leak of it to the Daily Telegraph, which is a paywalled newspaper. This was a very strange way of making the rules.

So it was government by decree rather than by democratic processes?

It was literally government by decree. There was a minister, and the minister would sign the piece of paper, and the law would come into force the moment that he signed it. There were 119 laws over those 763 days. Only eight of them were voted on before they came into force, and only 45 were debated.

What about the closure of schools? That was announced by Boris Johnson, but was it signed into law?

Never. Schools were never closed. Every school remained open throughout the whole of the period. People were told not to come; but legally, there was no change. The only change was that the government said they were not going to punish people for not going to school. The Secretary of State directed at certain points for schools to provide online education. After the first lockdown, there was a direction by the Secretary of State for Education to educate kids – because schools have to provide education, and they were told not to during the first lockdown. During the second lockdown, they had to provide a certain number of hours of online education.

Both of my kids were at primary school at the time. The school did not do anything, really, during the first lockdown, apart from sending a few pdfs, because they thought that they were not allowed to have Zoom lessons because of GDPR. There was one point where schools were threatening to stay open. Some school board, before the lockdown of January 2021, was saying, ‘We’re not closing.’ The Secretary of State for Education told them that if they did not do what they were told, he would direct them and they would have to. There was a bit of dissent and the government said, ‘Nah,’ and that was it – the dissent disappeared.

The government did that without any legal basis?

It was not mandated in law. Whether there was a legal basis was never challenged – whether you can legally say that kids are not allowed to go to school in the absence of sufficient online learning.

I was involved in a case about digital access to digital laptops and tablets, which settled because the government suddenly said that they were going to put in £100 million to provide them.

The problem was that for many kids, the idea that they might have online education was a joke, because they were living, say, in a two-bedroom flat with five kids and two mobile phones, the parents were working from home. The argument against the government was either they had to provide the resources, or let the children come into school, or some sort of other solution; otherwise, it was unlawful to prevent them from going to school.

Schools have been closed in pandemics before lots of times. In the Spanish flu pandemic (1918), schools were closed in England and in the US. It is a standard thing to happen because it is obvious that filthy, snotty children spread viruses. But the issue was that there was no planning or the provision of online education – which was a new idea anyway.

Returning to SAGE, is there a line to be drawn between scientific advice and government policy-making? Do you think the politicians might have different factors to consider in making laws from scientists? The scientists were (presumably) asked to advise about the effect of a particular virus, as opposed to the effects of lockdown on every aspect of society.

I think SAGE often did advise on other aspects. If their remit is health, they can look at mental health and physical health – they can give insight. The government has extra considerations, such as the impact of people not being able to go to worship, which for a proportion of the population is a very serious imposition, or the right to protest. Group worship was only banned during the first lockdown, and after that it was absolutely fine. You could have a thousand people in a church, but you could not have two people outside protesting.

That goes to show how the government skewed priorities. 60,000 people died in three months from December 2021 to the end of February. But in the November 2020 lockdown, they allowed unlimited-size Remembrance Day events outside, as long as they were socially distanced, but no outdoor protest. They allowed group worship, but no birthday parties, school or university. The priorities were skewed to reflect the individuals who happened to be in the room.

What were the worst particular consequences of having such a small government?

This is the bit I find very difficult as a lawyer, because the work has not yet been done to study the impact. From a public health perspective, I think that the government’s decision to delay lockdown on each occasion probably cost tens of thousands of lives.

Was that because of the issues I identify in my book? I do not know. Maybe – or maybe it was just the inclinations of the leaders, who were always going to make their decisions no matter who was influencing them, because that is the way the Tory party is set up, and that was the way Boris Johnson operated.

Is the point that you are making in Emergency State that we just lost democratic accountability – whether or not they made the right decisions in the end?

Yes. When you harm the state and democracy in that way, you leave scars.

What scars are we seeing?

In the book I talk about the right to protest, partly because I was involved in the Reclaim the Streets cases. The way that the right to protest was dealt with during the pandemic is emblematic of the way we approached democracy.

In Israel, at the beginning of the Pandemic, even during the first lockdown, the worst, they went out and they drew chalk marks on the ground where people could stand in public squares for protesting lockdowns. They had a straightforward approach, allowing people to protest as long as they were socially distanced. And Israel had one of the harshest and most draconian lockdowns: the secret services were even monitoring people’s phones to start with.

In the UK, they banned outdoor protests for almost the whole pandemic – when at the same time the state was intruding on people’s private lives in the most severe way it had done since the Second World War. It is almost unbelievable, and before the pandemic, you would not have believed that it could happen.

Another thing that was lost, as well as the sidelining of Parliament, was all the benefits that come from public dissent and discussion. We lost the ability to scrutinise what was going on.

Hotel quarantine, to take another example, was one of the strangest and most severe public policies in decades. Over 200,000 people were detained in hotel rooms, including tens of thousands of children. It was not even debated in Parliament – it was published in the Daily Telegraph and then it just happened. People were being sexually assaulted in hotel quarantine. I dealt with clients who definitely should not have been there for medical reasons.

There were all sorts of things going on –  just as happens in authoritarian states behind closed doors – which people were losing the will to challenge.

Is it your impression that people started to behave worse during the pandemic? For instance, because they were encouraged by the government to snitch on their neighbours; or in the many instances of aggression against people who were not wearing masks or socially distancing. Did we as a society become more irrational ourselves – and if so, was this partly because the government no longer respected people’s civil liberties?

I don’t know. I was very vocal about police encouraging people to snitch, which I thought was terrible from the perspective of social cohesion. SAGE always said it was a bad idea as well. The advice from the behavioural subgroup in SAGE throughout was positive reinforcement – to encourage people. Negative messaging does not work, behaviourally; it just makes you think everybody else is breaking the rules. I think most people knew that. My understanding of the most recent research is that the vast majority of people kept to the rules, except in very limited ways.

But the members of our government were lax with their own compliance from the very beginning.  Take Partygate, for instance; or the Dominic Cummings scandal; Matt Hancock‘s breach as Health Secretary, or the behaviour of the SNP MP Margaret Ferrier.

The signals this sent to the public was that we were not ‘all in this together’. In the book, I quote research from UCL which said that, after the Cummings scandal, something broke in people’s perceptions. Instead of thinking that everyone was keeping to the rules, they started to think that people were trying to get away with things. This led to a breach of trust between the public and the government.

Clearly, Boris Johnson and certain other politicians and advisers acted as though they were above the rules – when, as the rule-makers, they should have been the first to obey them. But could it be argued that, these cases aside, the rules were too harsh and authoritarian in the first place? Was the bigger problem with the fact that the rules were broken, or with the rules themselves?

I do not think they were so harsh that they could not be kept. The interesting thing about the way the politicians broke the rules is that it was not the way that most people broke the rules. It was not about having a kids’ birthday party with seven people instead of six. The government had wild parties with fights and puke on the walls. However lax the rules might have been, they would never have allowed for people to have big drunken parties indoors. If you look at Daniel Defoe’s diary, Journal of a Plague Year (1722), which is strictly a work of fiction but based on real events, centuries ago, ‘bear-baiting and tippling’ have been banned during plagues.

They did not know about how diseases spread back then, did they?

Yes, but they had the right idea. They thought there were vapours spreading through the air. They knew that interpersonal contact spread disease. The Old Testament had strict rules about leprosy, which they knew spread through touching, so they excluded lepers.

But going back to original question, is there an argument that the fact that the rulers were not keen on the rules shows that they were too harsh? There are two ways of interpreting that proposition. The first one is that the rules were so harsh they were impossible to keep. The second one is the ‘conspiracy theory’ interpretation: that the rulers knew that things were not as bad as they were saying, and therefore they did not bother keeping to the rules – which I think is quite wrong.

It is entirely possible that the rules were too harsh. Lockdown is a new idea. The first ever national ‘lockdown’ was, as far as I could tell, in 2009. Curfews, banning social gatherings, closing schools, face coverings, those are all pretty old, at least 100 years old, and probably hundreds and hundreds of years old. Total lockdown – that is brand new. And before 2020, the longest lockdown had been for five days, in Sierra Leone. So it was a huge social experiment.

Do you think that, from a policy or scientific perspective, there was a tendency to treat people as statistics, or to manipulate them en masse? For instance, Laura Dodsworth, in State of Fear (2021), argues that there was a deliberate campaign to frighten people through advertising. How far was this approach adopted, in your view, and were there any difficulties with it?

I deal with that in the book in relation to Lord Sumption. It is a point which I am sure Laura Dodsworth makes as well, about this ‘emotive messaging’ in the Behavioural Committee of SAGE. One of the big revelations of that theory is that SAGE recommended fearful messaging. I have read the paper, and I do not think they were saying that. They were saying that you have got to somehow communicate to the people for whom the risk from Covid is low, that by socialising and going about their ordinary lives, they are nonetheless, first of all, exposing themselves to a risk which is not quite as low as they think, and second of all, exposing others to the risk.

That is the big ethical problem of public health, particularly dealing with a new infectious virus: how do you square the fact that people are individuals – but, in terms of the way a virus spreads, like nodes. There is really only one question: do I have it or not?

This is a virus that spreads asymptomatically. That makes it different from Ebola, SARS, leprosy. It changes the rules, because what is otherwise a harmless social interaction, like us sitting here, drinking tea and chatting, becomes potentially two nodes meeting. Ethically, it is hard to know what the answer is. Probably, you need to weigh up as many different factors as you can, and reach some kind of decision which takes into account all those factors, and then you keep your decision-making dynamically on top of all the impacts you are having.

Is your criticism of the government that they failed to take into account all the factors they should have done, because they did not have enough people involved in the decision-making?

There were lots of views about lockdown. People certainly were expressing their views during the pandemic, especially from the summer of 2020. But the government allowed itself to be autocratic in the way it approached things. That is wrong in principle.

I do not have a very strong view about lockdowns, as strange as that sounds from a human rights perspective. I can see the enormous difficulty of those decisions and the differing viewpoints. I find it very hard to come down one way or the other, or say, as Lord Sumption did on 24th March 2020, that lockdowns are wrong and they should never be allowed – end of.

Suppose we agree that lockdowns are not necessarily wrong in principle, in some extreme circumstances. What about the specific case of Covid? The fact was that this virus did not attack everyone equally: according to a report by the Office for National Statistics in January 2021, the mean age of death ‘due to Covid-19’ was just over 80. Was this a factor that should have been taken into consideration in deciding how far the whole country should have been locked down? What about the many harms that resulted to others, who were not likely to die of Covid, from being locked down for extended periods?

That is possibly the case. But it is a very, very dangerous virus for those people. A very large percentage – in public health terms – of people over 60 were impacted. 200,000 people in this country died from Covid over a two-year period in the UK. 

That is still a very small proportion of the population as a whole.

But it is still a lot of people compared to the number of people that die every year, and a lot of people losing ten, twenty years of their lives. Those are really big numbers – certainly big enough to legitimately weigh up against other important things like my children’s education, people’s work, the risk of domestic violence, or the risk of being hauled over by the police in a semi-police state or getting a criminal record when you do not deserve it.

The Covid period was always going to be some kind of horrific national disaster one way or the other. If Covid had run unchecked, it would have been a horrific national disaster. Hundreds of thousands more people might have died.

Not all lockdowns are equal. Even compared to France, Spain, Italy, we had a pretty lax lockdown, and they got much more lax. France gave out a million tickets in a month. We gave 125,000-odd in the whole period. In China they cart people with Covid off to detention centres, and have drones enforcing the rules. They do not let people out at all – people die in their houses. And that is a horrific disaster of a different kind, because the population is basically being imprisoned. That type of lockdown is too far and too much.

You say you have not made up your mind. On what basis do you think that the opponents of lockdown in this country were taking their view too far?

They might end up being proven right – I do not know. The problem with the anti-lockdown argument is the question of the alternative.

You have mentioned Jonathan Sumption, who led the intellectual opposition to lockdowns. Where are the objections to his approach?

Lord Sumption never seemed to me to have considered what you should actually positively do in the situation we were in. Over the last five centuries of pandemics, states have tended to impose curfews, close schools, close pubs, ban gatherings, get the homeless off the streets, impose mask-wearing – many of the same things that we did during the Covid pandemic. Curfews have always been an element of local outbreaks of things like the bubonic plague. Once you have a suite of measures like these, you have a situation similar to a modern lockdown. The only missing element, in the past, was the stay-at-home order, because there was no internet, no working from home.

The two main points of the opponents of lockdown were, first, that rules should have been guidance, not enforced in law. This is really a behavioural science point – a point of practice rather than principle: it assumes that guiding people is better than forcing them through the criminal law and the police. The second point was that there should have been no restrictions at all. To me, that is unreal. I am not a scientist, but given basic knowledge of how a virus spreads, it was verging on madness to go about as if nothing was happening when there was a new virus that was killing and maiming lots of people.

What about the argument that the response to Covid should have been to balance shielding those at risk from this particular disease – largely the very old – with allowing other people who were less at risk to carry on with their lives?

My understanding is that this kind of shielding was not practically possible. Those at risk still have to be fed, to go for walks. If they are in a society where millions of people have Covid – which was already the case, notwithstanding the lockdowns – imagine what it would have been like if everyone else had been guided to go about their everyday lives.

The shielding argument also underestimates the fact that many people became very ill from Covid, had long Covid and died from Covid, who were not old. From a public policy perspective, it would not have been workable.

Take care homes, which contained hundreds of thousands of the people most vulnerable to Covid – who were very old and may have had underlying conditions. 20,000 people died in care homes on the first day of the pandemic. If the approach had been to shield the vulnerable but let everyone else continue as normal, that would have raised the question of who was going to work in the care homes, and how they were going to ensure they did not have Covid. You could have put them into glass boxes, I suppose. But detaining old people for two years is a really serious imposition on their rights. It might not be bad from a younger person’s perspective, selfishly, but it is not good for society. It is not very moral.

Were the benefits to the lives of those who were saved by the lockdowns worth the costs to the economy, which affects everyone, and to many people’s lives in different ways – especially the young? How far is it acceptable to risk long-term damage to the whole of society in the interests of protecting a relatively small group, who are themselves nearing the end of their lives?

I do not think society works like that. We do not live in silos. You could not realistically, practically, or workably have tens of millions of people having Covid at the same time, because of the numbers of people that would catch severe Covid, go to hospital, and have to be treated there. What happens to the old people that are already in hospitals for other reasons, or cancer patients – where would they go?

Statistically, even if you shield everyone over 70 and let the virus just run wild, my understanding is that tens of thousands of people would still end up in hospitals, completely overwhelming the system.

Throughout the three periods of serious upswings of Covid, hospitals were disaster zones. Despite the lockdowns and their partial suppression of the virus, the state of hospitals was absolutely horrific. Lots of healthcare workers died who were not elderly. I acted in a case with an ambulance driver who was 56, and had no underlying health conditions, but died in the first month of the pandemic just because he was exposed to so many Covid patients.

The shielding argument is made without much thought as to how it would be operated in practice. Of course no one wanted to stop kids going to school, stop people going to work, or to concerts, churches, debates – all the nice things that they do. But that was not practical, and there would have been unintended consequences. I am very sceptical of the claim that there was an easy answer that was better than the answer that we came up with.

In October 2021, you faced Sumption in a debate before the Oxford Union. You spoke in support of the motion, ‘This house would give up liberty for safety.’ What were your key arguments?

Lord Sumption’s argument was that, from a principled perspective, we should not have imposed this social experiment on the population by law – it was the wrong way to do it. I have a lot of sympathy for his argument. He was a very important voice during the pandemic – which I often did not agree with. My objection to his argument, as I say in the book, was that there was no realistic alternative solution.

I think Sumption approached the matter from a pure, libertarian perspective: the idea that a man’s house is his castle, and that the state should never interfere in one’s private life. He had taken that position before Covid. He supports civil and political rights, freedom of speech, no torture, but as to issues of privacy, personal identity, gay and trans rights – these are not for him. I think he comes from a very specific perspective because he is a very privileged, wealthy man.

One of the privileges of privilege is that you do not come into contact with the police. You are not the focus of public order laws. If you are poor and downtrodden, you frequently come into contact with immigration authorities, state authorities, the police – the state is in the lives of those people all the time. The way the state behaves, but also what it provides for you, becomes very important. Lockdown gave Sumption the experience of being like those people.

As far as Parliament goes, do you think that the opposition should have done more to question Boris Johnson and his administration over their Covid policies?

Definitely. The problem for the opposition was that they did not have the numbers. Because Johnson had such a big majority, there was no real prospect of opposing the measures, short of an alliance between some Conservatives and the opposition. At a certain point in the summer of 2020, a message could have been sent to the government saying that the way they had been acting would not be tolerated unless the others were given greater involvement or there was a government of national unity or a committee process.

Keir Starmer, particularly in the autumn of 2020, supported locking down sooner rather than later. I think Starmer was playing the long game: he did not want to be seen as irresponsible, but as a safe pair of hands. That was the way he read the public mood. There were reasons why the opposition were fiddling around the edges rather than being an opposition.

The problem with that approach is that the government’s policy might have been right, or it might not. But the whole point of democracy is that the assumption should be that people are wrong when they act according to imperfect information or on instinct. Then the arguments are subjected to scrutiny, debate and a harsh light.

That light of democratic scrutiny was switched off for two years. If it turns out that the lockdowns did not work enough to justify them, then there was a missed opportunity. If the lockdowns were in fact the worst option apart from all the others, but they were done badly and so carried on for longer than necessary, that would also have been a missed opportunity.

What do you think needs to change in British politics now to ensure we have a better outcome the next time there is a pandemic?

It is time to write down our constitution. We do not know enough about this murky, unwritten thing. One of the main purposes of a constitution is to protect countries during crises – to protect us from ourselves, subject decisions to scrutiny, and set red lines. We do not have red lines in our country. Prorogation is an example: the government actually shut down Parliament before the move was overturned by the Supreme Court. They adopted a similar approach during the pandemic with the Public Health Act.

On Valentine’s Day 2020 in the London Gazette, there was a declaration of a ‘serious and imminent threat to public health’ which no one knows about. There are all sorts of things happening behind closed doors – you have to be a nerd to follow what is going on. That is not the right way to run a modern state.

We need to sort out public health laws, because they give too much power to ministers. I suspect that the Covid Enquiry will conclude that the Public Health Act is not fit for purpose. We have to face up to how little power citizens have in circumstances when an executive wants to do something drastic. We need stronger powers for the courts and much better Parliamentary oversight. But we have known about all these problems for a long time, and in the end, I do not know whether anything will change or not.

Adam Wagner, Emergency State: How We Lost Our Freedoms in the Pandemic and Why it Matters, Penguin: Bodley Head, 13 October 2022

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