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Protecting Our Democracy?

December 5th, 2019

Remember the Supreme Court cases on prorogation or Article 50? How irrelevant they seem if, as polls indicate, the Tories get a majority. With 7 days to go, can there be a better time to wheel out Wilson’s dictum about a week being a long time in politics?  There cannot. Consider it duly wheeled out.

And yet the “Protect our Democracy” section in the Tory manifesto (pages 47-48, here) has not received the scrutiny it deserves. It starts with what some might consider a colourable statement, given recent events: “As Conservatives, we stand for democracy and the rule of law.” I should bloody well hope so. Little point being a Conservative if one didn’t believe in such things.

How unfortunate then that it was a Conservative PM who tried to suspend democracy, an act described by the Supreme Court as “having … an extreme effect upon the fundamentals of our democracy”; the same PM then saying that the Supreme Court was wrong, on the basis of his hitherto unknown legal expertise. It was a Conservative Leader of the House who described this decision as “a constitutional coup“, a claim as vacuous and silly as his claim that it was constitutionally necessary for the then Conservative Leader to resign having won a leadership vote. How unfortunate that it was a Conservative Lord Chancellor who had to be reminded of her legal obligations  to protect the independence of the judiciary when the judges ruling on Article 50 were attacked. How surprising it was to hear another Conservative Lord Chancellor having to confirm to Parliament that the PM would indeed comply with the law (despite not liking it) the PM’s advisors having previously put it about that he would ignore it. And how depressing was it to hear a Conservative Attorney-General berating MPs  saying that they did not have a “moral right” to sit in Parliament, apparently forgetting that those MPs had been elected by the voters in the 2017 General Election.

What could possibly lead to such extravagant, petulant reactions? Fortunately, the manifesto goes on to tell us in its next (and, to many, tendentious) statements:-

“One of the strengths of the UK’s constitution is its ability to evolve – as times have changed, so have Parliament, government and the judiciary.”  (Er, no: one of its strengths is that it has changed slowly, generally on a cross-party basis and that stability, rather than endless tinkering in response to events, has been prized as a virtue. There was a time when Tories criticised New Labour for upending the constitution without thought and for short-term party political advantage. Now they seem to have adopted it as a strategy.)

It goes on: “Today that need is greater than ever. The failure of Parliament to deliver Brexit – the way so many MPs have devoted themselves to thwarting the democratic decision of the British people in the 2016 referendum – has opened up a destabilising and potentially extremely damaging rift between politicians and people.”  There we have it. Parliament did not vote through the Brexit the government put before it so the constitution must be reformed. No understanding that there was a General Election in 2017 which the people did not give the government the majority it asked for. No understanding that this meant that the government had to work with the Parliament which the people had voted for. No understanding that you cannot endlessly chant about the “Will of the People” when it supports what you want to do but ignore those same People when they don’t give you what you want. No understanding that MPs have the right – indeed the duty – to exercise their judgment. No appreciation that if MPs do something which their constituents don’t like or contrary to what they promised them, they will face their judgment – as indeed most of  the awkward squad will next week when they will likely not be re-elected – and that it is not for the executive to come between that relationship between MP and constituent. No understanding that Parliament is not there simply to do the government’s bidding; that it is for the government to work within the constraints of the majority it has or can obtain and the limits of the law. No understanding that scrutiny of what a government does, whether by Parliament or by the courts, is essential to a democracy.

This is a party and leader who do not like scrutiny, whether by Parliament, Select Committee or the press. The party has convinced itself that the only important test of democracy in Britain today is whether it implements a referendum result. Important as that is politically, it is a dangerously reductive, self-serving and profoundly ignorant understanding of democracy. It is also decidedly unConservative. And so the manifesto goes on to promise:-

  • A look at “the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords”.  
  • A promise that “judicial review is available to protect the rights of the individuals against an overbearing state”. (This is no more than a statement of what has been the law for at least 60 years since the Wednesbury case, developed by judges not granted by Parliament, as implied by this promise, and is intended to prevent public bodies from acting unreasonably or unlawfully not simply in an “overbearing” way, another example of a loaded adjective). But wait: this right must “not be abused to conduct politics by another means or to create needless delays.”   

Aha! This is what all this is about: Tory politicians did not like being told by the courts that they could not simply do as they pleased, that they too were subject to the law, that they could not abuse the Royal Prerogative and behave like sovereigns of old. They did not have a big enough majority and, rather than realising that this was a message from the voters that they needed to work within the constraints of the elected Parliament, they now want to change the relationship between the two, disingenuously claiming this is necessary to restore trust in democracy. Let me take a wild guess: this review is unlikely to suggest ways in which the legislature or courts will have more power to control or scrutinise the executive but rather will plan to limit the extent to which governments can be challenged. It is certainly the view of a former Lord Chancellor – here, at 14 mins, 19 seconds in.

Let’s be fair: the manifesto does say that they will look at “access to justice for ordinary people” (like Harry Dunn’s parents, perhaps?). But you will look hard to find anything in the manifesto about how that access will be improved nor about how to deal with the consequences of a 40% cut in the budget for the justice system.

One of the dilemmas for those thinking of voting Tory is that, if Boris gets only a small majority or there is a Hung Parliament, the likelihood of a No-Deal Brexit or continued Parliamentary paralysis is that much higher. But if he gets a big majority, he will be able to behave with relative freedom. That requires a level of trust in him which, given his own and his government’s behaviour when it had no majority, would not appear wise.

Are these concerns of interest only to lawyers? No. Big mistake that. Judicial independence, scrutiny, legal restraints on the use of power, the rule of law are not there primarily for the benefit of lawyers, judges and journalists. They make democracy possible. They reinforce it. They are there above all to protect us.

If you are serious about protecting democracy, you do not attack or undermine them.

Let the last word go to a former Lord Chancellor, Thomas More (as imagined in A Man For All Seasons):-

“And when the last law was down, and the Devil turned around on you–where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast — man’s laws, not God’s — and if you cut them down — and you’re just the man to do it — d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.”  

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