“Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men …”
– From Lord Acton’s letters to Bishop Creighton, 1887.
Growing up in the N of Ireland during the Troubles, local elections were contested with massive enthusiasm and not a little rancour. Very often, the losing candidate, unable to say much else, would note that, whatever s/he felt about the result, it at least “had been a good result for democracy”, given the invariably very high voter turnout and the unquestioning acceptance by our divided community of the integrity of the election result. “We’ll get them next time”, declared the losers, as they rolled up their posters and packed away their bull-horns. Disappointed as the losers were, even in the middle of a low-level civil war between our two main communities, it never occurred to anybody to seek to ignore the result of any election. We in fact loved elections. The knowledge that they could so easily be lost meant that, for the winners, the occasional victory was all the sweeter.
In that context, I always felt that the loser’s “victory for democracy” platitudes were cringey statements of the obvious, and un-necessarily sanctimonious. Our two communities were at each other’s throats, but whatever else we disagreed on, there was a rock-solid shared understanding that free and fair elections mattered, for everyone. As if anyone would ever disrespect the ballot box, I scoffed.
Fast forward to January 2021, and this failed condom on Capitol Hill, and I realised how complacent I had been about respecting the ballot box:
Similarly, as a law student, as I yawned my way through lectures on constitutional law, I nodded complacently along to seeming platitudes from constitutional theorists such as Albert Venn Dicey, on the bedrock importance of the “rule of law” in any democracy.
The rule of law is little more than the principle that all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes. In practice, given that some branches of the government make the laws in the first place, the rule of law depends on the related doctrine of “separation of powers”, broadly speaking the division of government functions into three broad branches: a legislature, an executive and the judiciary. The legislature is the working parliament (such as the House of Commons in England) wherein publicly elected representatives gather to debate policy, vote through legislation and to scrutinise the actions of the executive. The executive is that subset of the legislature, formed by the winning party or coalition of parties, which formulates actual policy. In Britain, that’s Mr. Johnson and his Cabinet of Ministers. The judiciary are the judges whose job it is to apply the laws of the land to everyone, ordinary citizens and high-powered Cabinet Ministers alike. The intention behind a system of separated powers is to prevent the concentration of power by providing for checks and balances, such that, for instance, an independent judiciary is free to scrutinise the actions / antics of the government of the day, without fear or favour.
Who could object to all that, I thought. Having to learn all about this seemed largely pointless, I thought. Sure, any fool realises that – who, in a democracy, would be so venal, so corrupt, as to tinker with such a fundamental principle? It seemed unthinkable.
Again though, fast forward to October 2021, and to one of the most jaw-dropping pronouncements I’ve ever heard from a senior politician in a Western democracy – my comments added inside [ ]:
“We’re identifying the problems [bloody judges] and we’re making sure we fix them … We will get into the habit of legislating on a more periodic basis [every time they deliver some tediously fair judgment that we don’t like, we’ll have a nice ad hoc mechanism to kill it] and thinking about the mechanism for that. Where there have been judgments that, albeit properly and duly delivered by the courts, we think are wrong [Ministers, after all, know a damn sight more about the law than judges], the right thing is for parliament to legislate to correct them [they don’t know how lucky they are to have a man like me to sort them out].”
– Dominic Raab, Deputy Prime Minister of the UK, Secretary of State for Justice and Lord Chancellor
“That we think”? Who the hell is “we”? Johnson, Raab and Priti “Vacant” Patel?
“Correct” them? It’s one thing for a sitting government to be annoyed by a judicial decision. That’s what tends to happen, what should happen – judges annoying, delaying, frustrating the bloody government is a powerful indicator of a healthy democracy. If the government, or indeed any aggrieved party with standing, feels that a particular decision is “wrong”, the government can appeal the decision through the courts so that the decision is made congruent with the legislation’s remit. That is the process of legal correction, and that is a task for experienced lawyers, not fly-by-night, populist Cabinet Ministers. Obviously, if the higher Court affirms the judgment of the lower Courts, then it is of course open to the government to introduce fresh legislation, if they wish, and such legislation will be scrutinised in the normal way. As parliament is already able to legislate to correct flaws in the law, one wonders though is Raab considering a short-cut process whereby Ministers could de facto overturn Court judgments via un-scrutinised secondary legislation? I struggle to shake the suspicion that Mr. Raab is setting himself up to be the de facto kangaroo court of correction whereby Ministers, via some unspecified ad hoc mechanism, simply acquire the power to overturn any Court decision they dislike, without any recourse available by anybody else who may disagree with their unilateral “correction”.
It used to be that parliament legislated and courts interpreted. If a court went too far, they would be ultra vires the governing legislation, and their decision could be overturned.
The key point is that the overturning should be done by the courts – not by the legislators themselves. Remember all that boring old stuff about separation of powers? Raab is constitutionally illiterate, as is anyone who excuses this creeping tinpotism. Britain is starting to smell like a a democracy on the turn to something less wholesome.
De facto, Raab is setting parliament up to be both law maker and law interpreter. He and the rest of the Brexit mob don’t want judges, they want poodles; same as any fascist.
It may be introduced under the Trojan horse of reforming the Human Rights Act, but mark my words, once introduced, this tinpot Brexiter’s charter will be abused heavily.
Here is an excellent take-down by Mark Elliott, Professor of Public Law at the University of Cambridge:
Johnson, Raab and the Brexit Gang have form though. They hate judges:
Whither democracy now?
I wouldn’t say people are “too stupid” for democracy, as that would permit an inference that academic intelligence and political rationality share a positive nexus.
Demonstrably, they don’t – some of the biggest clowns I’ve ever met are festooned with degrees. I’ve lost count of the amount of people I’ve met with higher degrees who are astonishingly gullible / complacent in terms of evaluating their own confirmation biases when evaluating political initiatives; and who are frankly inept at qualitative analysis of models of nation-state structural governance.
A few years back, in Ireland, a politician called Alan Shatter introduced a referendum which, if passed, would give the Irish government more influence on setting judges’ salaries. (You can see a theme developing here.)
As you may know, in Ireland, as in the UK, the legal profession is split into barristers (who specialise in advocacy and work in the higher courts) and solicitors (who do high street or commercial work and who tend rarely to be in courts, unless they do e.g., RTA or criminal work).
Advocacy in the higher courts is a procedural minefield – senior court rules are voluminous and torturous, with numerous pitfalls for the unwary. You may be a confident public speaker, with a good legal argument; but, unless you know the forum rules intimately and how to deploy them to your advantage, and unless you have experience of court advocacy, you will still be filleted on a procedural point. It’s a skill, like any other, and it can be learned – and must be learned by anyone wishing to work as an advocate in the higher courts.
That is why, if a barrister wants to re-train as solicitor, they need to do an extra exam in property law and conveyancing. And if you’re a solicitor seeking to re-qualify as a barrister, you need to take an extra exam in advocacy and undergo a period of advocacy training.
And, in either case, you need to undergo a period of training under the tutelage of someone with years of experience.
Also, in Ireland, a barrister who is very experienced (minimum 10-15 years practice as a barrister) can apply to be designated a “Senior Counsel”, or “SC”. (Equivalent in England is “Queen’s Counsel”, or “QC”.)
Transferring between the various branches of the profession is therefore quite easy to do. It just requires that one does a little additional training. Makes sense (one would have thought).
Not for the bold Alan. Astonishingly, in 2011, he wrote to the Bar Council, asking that he be given equivalent status to a Senior Counsel, despite him not being a barrister, and despite him not even being a junior barrister – see at <link>.
The well-known Dublin phrase “jumped up little bollix” comes to mind. Anyway, that is not merely an amusing insight into the mentality of a conceited prat.
It’s relevant background; relevant, that is, if one is savvy enough to look beyond the sugar coating of a political initiative to discern the ugly hidden agenda.
When Shatter introduced his suggestion to “reform” judicial pay, I noted the tinpot nature of it.
The Irish government is the defendant in lots of cases taken in the senior courts. Some citizen or other has an issue with maladministration. Or someone wishes to sue a large multinational, when that same multinational de facto has various politicians in their back pocket, as they bring jobs to those politicians’ constituencies.
It has a chilling effect on the administration of justice if those same politicians can effectively decide judicial pay. Nobody wants a pay cut. You don’t. I don’t. Judges are no different.
In any finely-balanced case against the government, or against the government’s corporate mates, post Shatter’s referendum, any judge who wants to progress may – just may – be tempted to rule in favour of the side that butters his bread.
It’s a dilute, subtle version of the corrupt puppet-judges rubbish you see in tinpot countries the world over. By itself, Shatter’s referendum is not going to destroy the quality of Irish justice overnight, of course; but it nonetheless was a small step in the wrong direction.
At the relevant time, I worked in a company with dozens of very bright colleagues, many with higher degrees in corporate finance, engineering, project, management etc.
Curious, informally, I canvassed my highly-educated and very academically intelligent colleagues’ opinions. Two things became apparent:
1. Nobody gave a flying fig about the damned referendum. Nobody had bothered to read into it. “Yeah, whatever”, was the majority response.
2. When pushed hard for a view, everyone ultimately was in favour. Primarily on the basis that the judges were making too much money already, and it’d be a good thing to slap it up them, ho ho. So what if they have to cancel the order for the new yacht, ho ho.
My concerns about separation of powers and judicial independence were seen as arcane, far-fetched and wholly irrelevant. It became a source of ribaldry and good-humoured teasing about greedy lawyers sticking up for each other. “Ho ho”, I quipped back, despairingly.
Depressingly, nobody had bothered to do any research whatsoever into Mr. Shatter’s petulant back story, or to consider how his narrow personal animus against the Irish Bar might possibly be a contributory factor in his championing an ill-judged and constitutionally myopic referendum. And nobody had given even a moment’s thought to the implications of such structural tinkering for the long arc of justice.
Obviously, Shatter’s corrupt, populist referendum was passed with a thumping majority.
However, if I thought Shatter was bad, Dominic Raab’s latest “reform” has the potential to leave Mr. Shatter’s effort in the tuppenny ha’penny place.
In this context, a 2019 paper entitled “Democracy Devouring Itself: The Rise of the Incompetent Citizen and the Appeal of Right Wing Populism” by Shawn W. Rosenberg, Political Science and Psychology & Social Behavior, University of California, Irvine, is timely.
Read it <here>.
The paper is excellent. I’ll leave you with his primary conclusion:
“Considering the current conditions and trajectory of democratic politics, our conclusion is clear. Even, or perhaps particularly in well-established democracies like the United States, democratic governance will continue its inexorable decline and will eventually fail. The alternative that will supersede democracy, right wing populism, is also clear. It offers the understandings the people can readily comprehend, the values they can readily appreciate and the direction of speech and action they can readily follow.”