Uther Naysmith discusses democratic backsliding.
At what point does a democratic nation stop being democratic?
Is it, as Blunkett did in 2001, when a home secretary threatens to “remove” the perceived “constant” use of judicial review?
Perhaps it is, as May did in 2013, when a home secretary accuses judges of “subverting” British democracy and of making Britain more dangerous when courts quash illegal immigration regulations.
Or is it when a partisan press led by the Daily Mail accuses judges of being “enemies of the people” for upholding the sovereign voice of Parliament in the 2016 Miller case?
In reality, these moments, in isolation, do not make a country anti-democratic.
Democracy is eroded over time.
Global democracy faces unprecedented assaults. Populists harness widespread disenfranchisement, creating whirlwind coalitions against civil servants; judges; journalists; academics: a ‘liberal elite’ accused of standing in the way of ‘real people’. The PiS and Fidesz regimes of Poland and Hungary use this propaganda to dismantle judicial independence and control the press, destroying democracy one brick at a time.
British populism finds expression in the post-Brexit Conservatives. Conservative leaders respond to legal challenges such as the Cherry prorogation case by whipping up hatred against judges; senior backbenchers lambast MPs for their scrutiny of the executive vision of Brexit.
This assault destroys public confidence in a system already undermined. The breaking down of social security in the 1980s in the name of the free market, the sleaze-and-spin culture of the 1990s and 2000s, and the resultant decline in voter turnout; then the financial crash of 2008, followed by brutal austerity, have together left swathes believing that democracy has failed them.
Whilst global democracy is on the retreat, the chattering classes of established democracies content themselves with the notion that ‘it could not happen here’.
Yet, it is already happening.
In the US, police officers bundle protestors into unmarked vans; children of illegal immigrants are held in insanitary cages; and now, their president - faced with electoral defeat - seeks to postpone their November election, alleging conspiracy against him.
In Britain, home of the Mother of All Parliaments, it is happening too. In response to the court ruling allowing Shamima Begum’s return to Britain to challenge home secretary Javid’s potentially illegal revocation of her citizenship, the populist Conservative government announces its intention to bar judges from making so-called ‘political’ rulings.
Government sources claim these reforms are about “not placing judges in positions where they make decisions that should be made by Parliament.” However, these decisions were already made by Parliament. In the Begum case, the ruling turned on the meaning of Section 40A of the British Nationality Act 1981 and Section 2B of the Special Immigration Appeals Commission Act 1997, not the political or moral whims of the three judges.
It is a fundamental principle of the British constitution that the executive cannot act without statutory consent. If Javid’s decision to revoke Begum’s citizenship was unlawful, it is because Parliament, not judges, made the decision to not grant the government that power.
The politically appointed judiciary in president Erdoğan’s Turkey stands as a stark warning to all democracies. When the state unlawfully jails its opposition, Turkish courts serve only to rubber stamp executive decisions. In Britain, the mooted Conservative reforms threaten to substitute Parliamentary decisions about the powers of government with ministerial interpretation, deciding amongst themselves the extent of their own powers.
If we are not ruled by law, we are ruled by power alone.
Democracy dies a little each day. It dies when the Blair government replaces the only independent voice of the judiciary, the Lord Chancellor, with a partisan politician. It dies when May blames Parliament for her own failure to negotiate consensus over Brexit. It dies when Johnson accuses the Supreme Court of deliberately frustrating government policy.
And one day, when the legitimacy of our institutions lies in tatters, Britain could, without even realising it, wake up in a police state created by its own neglect.
Uther Naysmith is a Labour party activist from Derbyshire, studying Jurisprudence (Law) at Christ Church, Oxford. He hopes to be called to the bar and specialise in constitutional and human rights law. He writes political and legal articles in his spare time, and has spoken at public meetings and Labour party rallies on issues such as NHS reform and the British constitution.
He tweets @Uther_Naysmith