2021: the year to break the law?
The rule of law has had a rotten few years in Britain and the US, two countries traditionally dedicated to upholding it. 2021 is make or break.
The rule of law, more than democracy or prosperity, is the foundation on which all else is built. Without it, there is just arbitrary power and the rule of the strong.
For the last few years, it has felt like the rule of law itself is under threat.
In Britain, newspapers attack judges (“openly gay fencers”) and judicial process (a “crook-coddling criminal justice system” – from an erstwhile Telegraph columnist who has since gone on to other things) and the Government has openly proposed to breach the Withdrawal Agreement with the EU.
Funding cuts are straining the courts, prosecutors and police, delaying and denying justice to thousands of individuals and businesses.
In the US, politicians play fast and loose with the Supreme Court, pardons are used for political allies and President Trump tries to undermine the democratic process, calling the counting of votes “a fraud on the American public”.
Joe Biden's victory is good for the rule of law and bad for Periclean demagogues everywhere. But what to do with the Republican dominated Supreme Court? A painful answer for Democrats, but the right one, is: nothing. Republicans should be criticised for playing games with appointments, but to expand the court beyond 9 is to start a dangerous game where the court becomes irrelevant. The lack of a senate majority may make this a moot point, but in any case, Democrats should take the high road, for the simple reason that someone has to. If you want to be the good guys, you actually have to be good.
That Trump is now turning to the courts to help him out of an electoral mess is a delicious irony, but it is too late for that. The Supreme Court may have 6 Republicans on the bench, but it also has 9 lawyers. My hunch is that for them, law trumps party.
There is irony in the UK too. We are told that in 2016 the people voted to take back control of the law to be free, and here we are very much grounded – kept at home by home-grown laws voted through by our sovereign Parliament. Equally, the judges ("enemies of the people") and Parliament have not always played ball with the Government's Brexit and trade agenda. Case in point: the law-breaking clauses of the Internal Market Bill are likely to be rejected by the House of Lords today. Expect more angry headlines, more calls to tear down the British constitution and the rule of law.
All is not lost. The Conservative Party is still dominated by those who respect our institutions, our laws and (not to be underestimated) the facts. Whatever one thinks of the politics, on the two biggest issues of the day – climate change and coronavirus – the British Government is playing by and making use of the rule of law. Meanwhile, the leader of the Labour Party, himself a successful senior lawyer, is taking on the anti-Semites in his own party and using evidence rather than outdated Marxist theory to hold the Government to account.
2021 will see Britain and the EU will begin trading on new terms, with plenty of scope for legal disputes; President Biden will be sworn in, possibly on the back of judicial decisions; Trump may find himself under criminal investigation; and whether we like it or not, coronavirus restrictions will continue.
This year the courts will be centre stage and under pressure, so this is an appeal to politicians, news editors and the public: even if you disagree with the decision, respect the process. As robust as the system seems, there is nothing God-given or inevitable about democracy and the rule of law and they need to be defended.
2021 will be a vital year. See you in court.