A blog post on the ‘Defending Democracy’ panel debate we convened on 30 September 2019:
Chaired by Jessica Simor QC, a leading expert on human rights and EU law, discussions kicked off with Professor (Neal) Katyal, former Acting Solicitor-General in the US (2010-11) and Professor of National Security Law at Georgetown University, talking about what he believes are two ‘essential ingredients’ for defending democracy: the Judiciary and the Media.
9/11 and the breach of executive power
In the aftermath of the terrorist attacks in the USA on 11 September 2001, President George W Bush declared a 'National State of Emergency' and signed off an Executive Order that would prove to challenge the very linchpin of US democracy, ‘due legal process’.
The Order allowed for terrorist suspects to be seized and imprisoned at Guantanamo Bay detention camp and tried in front of a military court. Access to legal representation for those imprisoned was denied, thus bypassing the constitutional habeas corpus (the right to a fair trial).
Thanks to the work of Neal and others, through the Federal, District and Circuit courts, and mounting pressure from the US media, the Executive Order legislation was ultimately overturned by the Supreme Court in 2006. The Court ruled that the Executive Order was unconstitutional and in breach of the Geneva Convention on Human Rights. In this case, the Judiciary had proved to be the means through which the power of the Executive was constrained, and kept within the boundaries of the United States’ written constitution and international conventions.
Neal summarised his opening reflections by remarking that the Judiciary and the media both play an important role in upholding democracy, as they have the power to ‘read between the lines’ if the Executive tries to subvert its constitutional duties when enacting policies.
The UK in the era of Brexit
Following on from Neal’s reflections, Lord (David) Anderson of Ipswich, the barrister and cross-bench peer in the House of Lords, offered us a British perspective on how the rule of law can help to defend democracy.
David explained that, in the UK context, the Executive relies on having the confidence of the Legislator to govern effectively, and hence this confidence on the part of the Legislator is a key ingredient of democracy.
However, unlike in the US, the UK’s Supreme Court does not have the power to overturn legislation; only Parliament can do that. This can make things difficult when it comes to constitutional issues such as Brexit.
In the context of history, David articulated that, even though the UK has an unwritten constitution, the relationship between the Executive, the Legislator and the Judiciary has been relatively smooth ever since Parliament became sovereign in the 17th century. However, with a recent dissolution of the political centre-ground and the fading two-party system, there is a growing perception that this ‘smoothness’ between British constitutional entities has hit choppy waters.
According to David, the passing of legislation in 2016 that paved the way for a referendum on whether the UK should remain in, or leave, the European Union, opened a ‘Pandora’s Box’. More recently, the Executive’s decision to prorogue Parliament for five weeks ahead of the Brexit deadline of 31 October 2019 challenged well-established conventions still further, and resulted in Opposition MPs in Parliament passing new legislation to force the Executive’s hand.
David concluded his reflections by stating that, even though the UK is undoubtedly facing a political crisis, it is debatable as to whether there is also a constitutional crisis, given the ruling by the UK Supreme Court that the prorogation of Parliament was unlawful. Perhaps the checks and balances of democracy had been restored, for now.
In the course of the ensuing discussions, Professor Katyal quoted James Madison, one of the Founding Fathers of the United States, who said that, ‘If men were angels, no government would be necessary’. He concluded his contributions by suggesting that history has indeed shown us that people are not angels, and hence a constitution is critical for protecting citizens and upholding democracy.
Lord Anderson concluded that a potential consequence of Brexit could be the development of a written constitution in the UK. He outlined some of the potential benefits, which might include an increase in public confidence in the ‘System’, and the avoidance of a situation whereby the Judiciary is labelled a ‘traitor’ when carrying out its duties in reviewing constitutional matters.
Before inviting questions from the audience, Jessica Simor closed the debate by thanking the guest panellists and proposing that the election of people to Parliament is not where democracy ends; the Judiciary and the Media also play key roles in keeping the wheels of democracy turning.
Watch the conversation
If you missed this event, you can watch it in full in video, here, including questions from the audience.