We are living through an effort to mobilise public anger in order to hand all power to the executive, says Joyce McMillan.
The rule of law; it’s a phrase rolled out so often in political debate that it’s possible to become almost deaf to it, and its deeper meanings. Elderly climate deniers use it to argue that insurgent movements like Extinction Rebellion should not be allowed to disrupt business as usual. Anarchists reject it, socialists eye it with suspicion; and satirists love to record with glee the countless occasions, world-wide, on which the law has proved itself an ass, and often a corrupt one, at that.
And yet, for all of this, it remains impossible to name any functioning society which has not featured some attempt to set down rules, and to uphold them in a public arena. It’s precisely because justice matters that rebels down the ages have been so outraged by its failures and abuses; their cry is almost never for no law, but for better law, fairly administered.
So at a moment like this one, when sources close to the UK Government are openly maligning the Scottish judges who ruled on Wednesday that the current prorogation of the UK parliament is unlawful, and when pro-Brexit ranters on social media and elsewhere are portraying all judges whose decisions obstruct the rush towards a no-deal Brexit as “enemies of the people”, it’s hardly surprising that we are hearing the “rule of law” phrase rolled out repeatedly, as pundits consider whether the present UK Government represents a threat to it; and hardly surprising that radical insurgents – this time mainly on the pro-Brexit right – are to be heard dismissing these concerns as nothing but the voice of a conservative establishment, trying to frustrate the democratic will of the people, as expressed on 23 June 2016.
All of which invites some deep thought about the relationship between law and democracy in our post-war world, and about why that relationship increasingly seems to be in crisis. Ideally, of course, law and democracy work in harmony; parliaments pass laws that reflect the values of the people, and the courts administer those laws in good faith. One of the great lessons of the Second World War period, though, was that, on occasions, the people can be brought to vote for governments and policies that by any objective measure seem criminal; and it was in response to the sheer horror of the Nazi holocaust that the whole structure of post-war international law began to emerge, founded on the Universal Declaration of Human Rights, and designed to constrain individual governments from committing clearly criminal acts, with or without democratic sanction.
The post-war settlement therefore includes an assumption – based on much earlier theories of civil society – that regardless of popular opinion, governments themselves should not break the law; and it’s in this area that the UK now seems to be approaching a dangerous corner. As I write, the entire apparatus of British Government is holding its breath, awaiting the moment, some ten days from now, when the UK Supreme Court will make a final ruling on whether the current prorogation of parliament is lawful. And if the judgment is that it was not lawful, then all hell can be expected to break loose; either at the constitutional level if the Government tries to defy the courts, or at the political level if Boris Johnson accepts the court ruling, and is effectively forced either to ask for further Brexit extension, or to resign.
For the greatest unknown quantity in all of this, in the end, is the possible response of the people, when we finally make our way to the ballot-box in a UK general election or a second EU referendum. If nothing else, after all, the Brexit debate has revealed just how few of those post-war assumptions about the framework of legality within which democracies should operate have really made their way into public consciousness in Britain. Time and again, in the Brexit debate, people cite the slender referendum majority of June 2016 as if it had absolute “democratic” authority, and as if democracy involved only the subjection of minorities by majorities; time and again, interviewers raise electoral majorities – in a referendum, in the House of Commons, or even in opinion polls – as if they legitimised all and any behaviour by the Government, making it not only possible, but morally right.
The idea that democratic culture, in order to survive, needs to respect minorities, cultivate compromise, and protect basic rights and freedoms for everyone, seems to have made very little impression on public opinion. And if you add to this general vagueness about the demands of democracy the justified anger of people who have been treated by their existing elites to almost 40 years of neoliberal economics designed to serve vested financial interests rather than the common weal, then you have a situation that is ripe for exploitation by right-wing demagogues who claim to be attacking those existing elites on behalf of the people, when in fact their only interest is in destabilising them enough to seize power for themselves.
For 70 years, it has almost been a cliche of European history to point out how the harsh right-wing economics of the 1930s, unmitigated by the Rooseveltian social democracy that triumphed in America, led directly to the rise of fascist authoritarianism. Now, though, we are living in real time through an effort, orchestrated by powerful forces in politics and the media, to make that kind of shift happen again, mobilising popular anger to discredit potentially protective institutions, bulldoze them out of the way, and vest all power in an unchained executive. Whether Boris Johnson himself is fully on board for that project, or is now simply a hapless front-man well out of his depth, remains to be seen.
In the end, though, the crucial determining factor will be whether the people decide at the ballot box to back their parliament and judges, and resist this concentration of power in Downing Street; or, in the main, have now had enough of the complications of democracy, and simply want “strong government” – until the moment, of course, when they find themselves on the sharp end of what that “strong government” is doing, with very little remedy left to seek, even in law.