2nd January 2021
Those with political power tend to want more power, and those who want more power will tend to then abuse it.
This is not a new observation, and it is perhaps one which can be made of most if not all human societies.
The role of law and government is thereby not so often to enable such abuse of power, but to acknowledge the likelihood of abuse and to seek to limit or prevent it.
That is why those with power are often subject to conventions and rules, why there can be checks and balances, and why many political systems avoid giving absolute power to any one person.
That those with power want to use, misuse and abuse that power is not thereby a feature of the current government of the United Kingdom, but a universal (or near-universal) truth of all those who seek and have political power everywhere.
Those with political power will tend to try and get away with misusing or abusing it.
The current government of the United Kingdom, however, is remarkable in just how open it is in its abuse and intended abuse of law, and in at least four ways.
And what is also striking is what has changed politically so as to enable them to be so open.
This was in respect of the Internal Markets bill, and the ability to break the law was stated as the intention by a cabinet minister in the house of commons.
This proposal led, in turn, to the resignations of the government’s most senior legal official and a law officer in the house of lords.
And then it was even supported by a majority of the house of commons.
The proposal has now been dropped – and some would say that it was only ever a negotiating tactic.
But even with this excuse, it was an abuse of legislation and legislation-making, requiring law-makers to become law-breakers, and signalling to the world that the government of the United Kingdom does not take its legal obligations seriously.
There was no good excuse for this exercise.
Yet the government sought to do it anyway.
Second, the government of the United Kingdom is seeking to place itself, and its agents, beyond the reach of the law.
This can be seen in two bills before parliament: one effectively limiting the liability of service personnel for various criminal offences, including for torture and other war crimes, and the other expressly permitting secret service agents to break the law.
From one perspective, these two proposals simply give formal effect to the practical position.
It has always been difficult to prosecute members of the armed services for war crimes.
And domestic secret service agents have long relied on the ‘public interest’ test for criminal activity (for any criminal prosecution to take place there are two tests: whether there is sufficient evidence, and whether the prosecution is in the public interest, and guess who routinely gets the benefit of the latter).
And secret service agents abroad have long had legal immunity back in the United Kingdom, under the wonderfully numbered section 007 of the Intelligence Services Act 1994.
The primary significance of these two current proposals is that the de facto positions are being made de jure.
The government believes (rightly) that it can legislate to this effect and get away with it.
The third way – when the government cannot legislate to break the law or to make it and its agents beyond the law – is for the government to legislate so as to give itself the widest possible legal powers.
Again, this is not new: governments of all parties have sought wide ‘Henry VIII clauses’ that enable them to bypass parliament – legislating, and amending and even repealing primary legislation by ministerial decree.
But what is new here is the scale of the use of such legislation – both the pandemic and Brexit have been used as pretexts of the government to use secondary legislation for wide ranging purposes – even to limit fundamental rights without any parliamentary sanction.
And as I have argued elsewhere, there is no absolute barrier under the constitution of the United Kingdom to an ‘enabling act’ allowing ministers to have complete freedom to legislate by decree.
The fourth way is the flip-side of the government seeking more legal power.
The government is seeking ways to make it more difficult, if not impossible, for it to be challenged in the courts.
It can be done practically (and insidiously): by creating procedural impediments and by cutting or eliminating legal aid for such challenges.
It also can be achieved by the government either promoting or not challenging attacks on the judiciary and the role of courts in holding executive power to account.
If the government cannot break the law, or make itself immune to the law, or give itself wide legal powers – it certainly does not want citizens to be able to challenge it.
Of course, this impulse is also not new – and examples can be given of governments of all parties seeking to make it more difficult for legal challenges to be brought.
But again, what is different from before is the openness of these attempts.
There is no self-restraint.
The government is going to get away with as many of these barriers as it can.
The big change is not that those with political power want to abuse it – and to stop those who can check and balance that abuse.
That is a problem no doubt as old as law and government itself.
What is remarkable is how the United Kingdom government is now so brazen about it.
The government just does not care about being seen doing this – and if there is any concern or even outcry – that is regarded as a political advantage.
The ‘libs’ are ‘owned’ and those with grins will clap and cheer.
In this current period of hyper-partisanship there is no legal or constitutional principle that is beyond being weaponised.
What perhaps restrained the United Kingdom government – and other governments – from being so candid in their abuses and misuses of power was once called ‘public opinion’.
People cared about such things – or at least those in government believed people cared.
But, as this blog averred on New Year’s Eve, what happens if a public-spirited donkey does tell the animals on the farm that power is being misused or abused – and the animals still do not care.
‘The animals crowded round the van. “Good-bye, Boxer!” they chorused, “good-bye!”‘
And this brings us back to the key problem for liberalism – and for the principles of transparency and accountability – in this age of Brexit and Trump.
It is not enough to point out the lies and misinformation – or to show the misuses and abuses of law – if a sufficient number of people do not care that they are being lied to or misinformed and that the law is being misused or abused.
And there is nothing the media or commentators can do about this (though we should still be public-spirited donkeys anyway).
This requires a shift – not in media and communications – but of politics and of political leadership.
Only if enough citizens care about the government abusing or misusing the law will the government stop doing it, at least so openly.
And until then the United Kingdom’s indifference towards the rule of law and other constitutional norms will just be a register of the public’s general indifference about the government getting away with it.
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