Democracy under attack?

Although in favour of democracy in general terms, clearly it has its problems. The main problem is that it depends upon the information available to voters and their ability to understand and process it. They, after all, ultimately determine which government policies are adopted, whether actively or through lack of interest in the entire process. Governments tend not to adopt unpopular policies for reasons of self-preservation. That also means that governments tend to look to the short term – what will get them elected the next time the people go to the polls – rather than what would actually be good for the country in the longer term. In that sense, they are behaving like most people do in their daily lives. They tend to look to the short and not the long term. Keynes famously said: ‘in the long run, we are all dead’.

That applies with even more force in the world of politics. But, particularly now, we seem to have many groups, both rational and irrational, who are demanding that things be done which politicians are unwilling to do, and demanding these things in a very forceful way. They are attempting to subvert the democratic process, by demanding that governments to do as they say, rather than as the people have voted. They often try to justify their actions by saying that the government “has not listened to them”, when the truth is that the government has listened, but decided not to do what the pressure group requires. And so in that sense, they are acting anti-democratically.

But of course it all depends on our definition of democracy. Indeed, many people would see protest as an integral part of the democratic process. If you want to change people’s minds, then you have to make a noise. In turn, though governments would say “yes, but it should be peaceful protest”. Over the last few years, we have had very determined, very disruptive and very noisy protests carried out by Extinction Rebellion, Insulate Britain and various anti and pro-Brexit groups, all given considerable publicity by the press and television.

Who can forget the man who stood in Parliament Square shouting through a loudhailer at the top of his very loud voice about Brexit and so, day after day, disrupting interviews with politicians and others about Brexit. Not that I could actually make out what he was saying. And now, we have direct action to disrupt the road system with not even emergency ambulances let through because, the protesters tell us, the loss of life through failure to insulate our lofts will be much greater?! Of course, they also say that the government isn’t listening...

And so now we have a government which is determined to curb the action which can legally be taken as part of a protest, relying on the public’s distaste for such direct action to give them a smooth path towards this.

Various other people, zealously watching for any diminution of our rights, have called this sort of action equivalent to the repression going on in Hungary or Russia: they tell us that our democracy is on a knife-edge. Jonathon Freedland, a well-known journalist and broadcaster, writing in the Guardian on 1st October, has said just this, although in connection with a series of other actions the government wishes to take to limit what we are able to do and to know. He tells us that the government is taking action against the courts in order to shrink their ability to hold the ruling party to account and is imposing new rules that would gag whistleblowers and sharply restrict freedom of the press.

Mr Freedland is of course right to raise these points although, perhaps for the sake of brevity in his article, he doesn’t actually look at the detail of the various restrictions the government is proposing. The phrase ‘the devil is in the detail’ is apt here, as in many other circumstances.

When the new government came into power, it followed the humiliation of Boris Johnson’s government by the Supreme Court. It had declared that the prorogation of Parliament was null and void. And so vengeance was the name of the game for Boris and his friends. They said that they wanted to stop the Courts ‘interfering in politics’. It need hardly be said that this is a characterisation which ‘The Supremes’ and, in particular, Lady Hale, would entirely reject. But one of the government’s cronies, Lord Edward Faulks QC, together with other lawyers and academics sympathetic to the government, was given the job of looking at what was wrong with judicial review and therefore how it should be changed. Surprisingly, their review said, basically, that while some minor changes would be useful, there was nothing much wrong with the existing system.

The ‘learned’ commentary I have read since about the government’s draft bill placing some restrictions on judicial review tells me that they’re not by any means what were at first feared. The difficulty is more that Parliament has now started to put into Acts of Parliament provisions attempting to remove, at source, the right of judicial review for that particular Act. As such, it is open to a subsequent government to stop using such a device. It also remains to be seen what the Courts will make of the drafting of those Acts. There is a feeling that the courts will somehow get around it if they want to.

Another criticised change is the abolition of a right, by way of judicial review, to a last-minute appeal against an immigration order, so preventing those who are often convicted criminals from being deported, sometimes even when they have already boarded the plane to their homeland. But this is not what it sounds. In this country we do not have a system which allows an appeal against the decision of one court to another court at the same level. In the case of immigration appeals, however, for no good reason, this can happen. The change proposed simply removes a right of appeal from one tribunal to a tribunal of equal standing, a defect in the drafting which was missed when the system was being set up and so should be removed. But some human rights lawyers, perhaps with vested interests – their fees – are opposed to such a change.

As far as restrictions on demonstration are concerned, the government doesn’t actually have direct control. As remarked above, quite a few of the limitations on conduct seem to me to be a response to attempts by demonstrators to impose their view of how things should be without going through the democratic process. But the new Act, once passed, still has to be enforced. And there are still two barriers in the way to overtly political conduct in that context – decisions by the police as to how far they want to be seen to get involved to stop demonstrations happening and the right of the DPP/Crown Prosecution Service to decide that they’re not going to allow a prosecution to proceed in the circumstances. This is a power they have independently of government, if they consider that prosecution would be excessive or otherwise not justified in all the circumstances.

What is more troubling are such things as appointments to supposedly independent bodies of government cronies, such as the ex-Daily Mail editor Paul Dacre, as chairman of Ofcom and so having influence over what constitutes a balanced news agenda and so what we read, see and hear. Mr Freedland’s article refers to another article in the Guardian which deals with this in more detail. Perhaps he should have read the article, because it also explains the difficulties the government is having in pursuing that particular agenda. The independent interviewing body refused to allow Mr Dacre’s appointment. Although the government is now trying to find others to conduct another interview, they are having great difficulty in finding the necessary stooges.

What is most troubling though is the proposed change to the Official Secrets Act which, in its present form, would not give a public interest defence to whistle blowers or journalists reporting what they had been told. We shall have to see how that fares as it goes through the parliamentary process.

So then, I agree that, like with most governments, there is an attempt to grab power and, generally when the power has been grabbed, a subsequent government, even one composed of those who opposed the original power grab, if ever we have another one, do nothing to put things back as they were.

Paul Buckingham

12 October 2021

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