Boris Johnson’s vision: tabloid mob rule
There is an article in this week’s New Statesman from Danny Kruger, newly-elected MP for Devizes (right) in Wiltshire, replying to two pieces from last week’s edition which called Boris Johnson’s government aimless in one case and revolutionary in the other. Kruger claims that Johnson’s project is not a revolution but a ‘restoration’, the “re-establishment of democracy and the creation of the common good”. Alarmingly he claims that public services are not where “the profound changes we need today” are; anyone familiar with them will disagree. Johnson and co, however, want to strip away the right of the people to a judicial review of legislation designed to strip their rights or their supports away. He, of course, frames this as “the judicial review process by which judges can make policy” and promises a “re-balancing”:
Most immediately it is the restoration of politics to its proper place at the apex of our common life. Last week’s reshuffle put Michael Gove in charge of the government’s reform of legal rights and responsibilities. This will examine the judicial review process by which judges can make policy. Politicians, on behalf of the people, should take the decisions and make the rules: civil servants and judges should implement the decisions and apply the rules. That balance will be restored under this government.
When Tories want to strip away people’s access to the law, they typically frame it as an attack on over-mighty judges or “fat cat” lawyers. The upshot is, of course, that people defending themselves in the criminal courts or fighting to secure access to their own children, or to protect their children from an abusive ex-partner, have to represent themselves in court, often against wealthier opponents who can afford legal representation. The legal profession largely do not approve, because they have learned from their first week at law school that a founding principle of justice is equality before the law. (Another result is that, when public legal aid is removed, lawyers seeking to serve people leave the profession and the real fat cats, who work for corporations on things like intellectual property, remain.)
Most modern democracies have constitutions, i.e. a supreme law that statute law has to be judged against, and can be overturned if it falls short by violating people’s rights or enabling an arm of government to overreach its powers. Britain does not; its ‘constitution’ is sometimes defined as “what happens” but consists of a mixture of law and tradition. Any of this can be overturned with one act of Parliament, and unlike in other two-chamber parliaments, one of the chambers is unelected and cannot guarantee that any of its amendments will make it into law if the other disagrees. In addition, the voting system often means that the largest single party in terms of popular vote — 43% in the case of the present government but in the past, even less — has an outright majority of seats. Let’s imagine that a party can come to power after a purge of dissenting voices within the party, and acquire a large number of new MPs from places that did not traditionally vote for it who might not have had time to develop independence of political thought, and you may well end up with a kind of elective dictatorship or tyranny. This state of affairs is exactly what modern constitutional democracies are designed to at least make more difficult. But Britain is not a modern constitutional democracy.
It amazes me that commentators and politicians familiar with the American constitution or most European ones, often working for newspapers with American owners, are so outraged at British judges whom they accuse of trying to frustrate the implementation of legislation: in other countries, that is part of their job and this is a matter of national pride. America has rather the opposite problem from the UK: a constitution mostly drafted in the 18th century with a number of absurd or plainly undemocratic features that can often be traced back to the demands of slave-holding states, which cannot be changed without a long and involved process that requires the approval of two thirds of those states, some of which have eight-figure populations and some barely a million and the two have equal weight. (More usually, a constitutional change requires a referendum with a two-thirds majority.) In ours, we have a parliamentary system in which the government, if it has a large enough majority, can do pretty much what it likes. Judicial activism is a natural consequence of both problems: urgent change that cannot be implemented because of a constitutional lock, or a pseudo-majority government with no respect for people’s rights or even the rule of law.
Boris Johnson was born in New York, albeit of British parentage, but his programme would deny British people the rights he enjoyed while he was an American citizen. British politicians are not used to having checks on their power, of judges in particular being able to tell them they have overstepped the mark, and British newspapers (tabloids like the Sun and Daily Mail especially) do not like it when their demands cannot be met. These demands often consist of a kick in the head for someone; usually, someone with numerous family connections here is being expelled for a reason that morally does not justify it, in some cases putting them in grave danger, or a much-needed benefit being stripped away while the cheerleader press stereotypes the recipients as scroungers. (Constitutions do not generally protect benefits, but they do protect the rights to citizenship and restrict the grounds on which it can be stripped from someone.)
“The people”, of course, did not agree to Boris Johnson being PM. His party won a numbers game, not a popular vote. He is like every demagogue who justifies their tyranny by appealing to the “will of the people”, meaning the loudest voices of the meanest, richest and most powerful members of society. The deprivation of the right to the law is something that people will fail to notice until they come to depend on it, by which time it will be too late.
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