Rules Don’t Apply

Friday’s Sun included a strongly worded comment piece lambasting Covid policy as driven by “Matt Hancock, a fanatic, and Boris Johnson, a muddled old bumbler” and as inflicting unjustified misery and economic mayhem while failing to stop the spread of the virus. No surprise there -newspapers are free to voice a range of views on issues of the day – but more troubling is the fact that the writer of the piece is former Supreme Court Judge Lord Sumption.

He’s no stranger to controversy, admitting in August that he had not himself complied with “some of the law” and suggesting last month that people should decide for themselves whether or not to obey coronavirus laws. He went further yesterday arguing “it is about time we voted with our feet and took back control of our own lives.” Sumption is entitled to his libertarian views and but should he be expressing them?

For one thing it’s a breach of the long standing convention that judges should not comment publicly on the merits, meaning, or likely effect of government policy. For another, The Guide to Judicial Conduct says that judges "should be aware that participation in public debate on any topic may entail the risk of undermining public perception in the impartiality of the judiciary". It also says that "where a judge decides to participate in public debate, he or she should be careful to ensure that the occasion does not create a public perception of partiality towards a particular cause or to a lack of even handedness". There’s nothing remotely even handed in what Sumption has to say or the way he says it.

So what? He’s retired and surely he can say what he pleases. Unfortunately for him the Guide to Judicial Conduct makes clear that “a retired judge may still be regarded by the general public as a representative of the judiciary. Retired judges should exercise caution and are encouraged therefore to refer to this guidance so as to avoid any activity that may tarnish the reputation of the judiciary.”

Unfortunately for us, Sumption is not fully retired. He is one of four members of the Supplementary Panel of the Supreme Court so until he reaches 75 in 2023, he can be called upon “when additional judges are needed to form a panel of the requisite number”.

Call me old fashioned, but I’m genuinely puzzled as to how Sumption could now conceivably sit in any court let alone the highest in the land. I’ve made a complaint to the Judicial Conduct Investigation Office but am not expecting much. Sumption is probably a member of the club to whom ordinary rules don’t apply. If that’s the case, as Sumption says about Covid policy “this is worse than unjust. It is insane”.