Imbalance of power
13 Feb 17
These days, all lawyers may need to be ready to take a stand in defence of the rule of law
There have been times in recent years where I have feared for the rule of law. Politicians have directed slighting comments at judges whose decisions they did not like; successive UK Governments have done all but openly defy the European Court of Human Rights, particularly over the issue of prisoners’ voting rights. (The Russian Constitutional Court has now decided to defy the Strasbourg court: British ministers were well warned that this sort of thing would result from their own hostility.) And the media, despite vigorously defending their own freedoms under the law, can be as guilty as any of undermining the integrity of the system.
The strain on the system was increased during the article 50 Brexit litigation, with the notorious “Enemies of the People” headline following the High Court decision and the Lord Chancellor’s marked lack of enthusiasm for standing up for the judiciary, despite her statutory duty to defend the rule of law. At least both she and the Supreme Court were fully prepared by the time of the latter’s decision last month to uphold the initial ruling, and the coverage, though not exactly respectful at times, showed a little more understanding of the points at issue.
Admittedly the court’s decision may itself lead to other tensions: as is noted in our leading features this month, its hands-off approach to matters regarded as of constitutional convention rather than law could result in a lack of policing of contentious legal-political issues that ends up putting the constitution itself under further strain. The courts are well aware that they are in sensitive territory, but it is clear enough that holders of power are liable to exercise it in any way they are able, in the absence of some constraint.
And what are we to make of events in the United States, just in the first weeks of the Trump Presidency? One man appears intent on testing, perhaps to breaking point, a prided system of separation of powers. If Congress is compliant, only the judiciary can uphold the constitution – at risk, if early instances are repeated, of unrestrained ridicule if they do, at the hands of someone who has only just sworn to uphold the constitution.
To date the legal profession there has won plaudits for its actions in support of what it believes to be right. If it should fail, the consequences could be serious indeed. There is no guarantee that we in the UK would be immune. The rule of law may need us all to take a stand.