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Why we respect the law in a democracy

Sunday, November 6, 2016 22:25
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A foundation of a stable democratic society is the willingness of all apart from a criminal minority to accept the rule of law and to seek to uphold it. All MPs and Ministers are beneath the law, as are all other citizens. If allegations are made and taken to the courts any accused citizen has to attend and defend themselves. The courts have the power to enforce the law and impose punishments on those who have offended. MPs have no special rights under the law. We collectively have one special power, which is to change the law for the future if the old law has ceased to please or is producing unreasonable results. Parliament also holds the power to change the powers of the courts and to amend the way judges are appointed or removed. In that sense the UK’s Supreme court is Parliament.

Respecting the law does not mean, however, that we have to respect all lawyers and judges all the time, or refrain from commenting on what they do. Just as in a free society a constant stream of criticism, comment and advice to government is an important part of democracy, so there have to be occasions when individual judges and judgements can be criticised or debated for what has been said and done. There have been worrying miscarriages of justice in the past. Those who support the wrongfully convicted have every right to try to revive their case, to petition for a retrial, to go through appeal processes, to seek a reversal of a bad judgement. There can be the occasional incompetent or corrupt judge who needs to be dealt with, starting with public exposure of what they have done wrong.

When judges decide to step into highly political territory as they have done with the recent judgement of the High Court on how to proceed over our relationship with the EU, they must expect to become involved in a heated public debate. A free press is also an important part of democracy. I do not need to agree with the tenor of much press comment on this issue – on either side of the debate – to say I think each newspaper has every right to say what it wishes on the results of the judges deliberations. It is also reasonable in a free society to explore the backgrounds and motivations of judges making highly political decisions, as we regularly explore the motives and backgrounds of Ministers who make similar decisions on our behalf.

I tend to the view that moderate language is better for a sensible public debate, but I don’t want to live in a society where censors decide what is moderate enough. There will always be differences of opinion on what is an appropriate way of stating a case. Sometimes colourful or powerful language is essential to get across the breadth and depth of feeling in the community about an issue.

I will consider tomorrow the powers and opinions of the High Court on the issue of an Article 50 letter, where I think they have made bad mistakes in law, in defining their powers, and in politics.

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