This month, the U.S. and Britain are going through public reckonings over whether the chief executive is above the law. More than 40 percent of British Conservatives voted to oust their own prime minister, Boris Johnson, following the exposure of his flagrant violations of his own pandemic restrictions. Days later, the January 6 committee of the U.S. House began presenting its case that Donald Trump was at the center of a plot to overturn the 2020 election.
British socialist David Renton argues that socialists should not be indifferent when the bourgeois state fails to follow its own rules. Workers and the oppressed have the most to lose when when the ruling class threatens to shed its democratic skin.
For much of the past five years, it has felt as if the world was drifting away from democracy, with practices such as protest bans and corporate or state supervision of the media becoming ever more pervasive. In the U.S., you had Trump, and now you have his followers introducing voter suppression laws—148 of them in 27 states at the last count; in Europe we have just seen Marine Le Pen win 13 million votes in the French presidential elections, the largest vote for a far-right candidate anywhere on the continent since 1945. Is the world turning fascist? Maybe not quite that, but the increase in authoritarianism is unmistakable.
Readers will recall Trump’s Muslim travel ban and the protests that met it. Here, what interests me is how this ban was dealt with by the courts. In 2017, the United States Court of Appeals was asked to rule on the legality of Executive Order 13769. The issue before the Court was whether the president, as head of the executive branch, has an unlimited authority to set relations between the state and foreigners. Article II of the U.S. Constitution makes the president responsible for foreign affairs and national security and gives the president the right to make treaties. Trump’s lawyers argued that in this area he could do what he liked and that no one else, neither the courts nor Congress, had the power to challenge him.
Having lost at the Court of Appeals, the president withdrew that executive order before issuing a new version of the same document, Executive Order 13780, better designed to withstand hostile judicial scrutiny. The Supreme Court upheld that order on partisan lines, 5-4, but the majority decision drafted by Chief Justice Roberts fudged the question of whether the president was indeed supreme in the field of immigration policy. In fact, the question of the supremacy of the president was decided not in the courts but by the failure of Trump’s January 6 coup. Had that succeeded, we’d now be looking at a very different American polity, one characterized by the supremacy of the president over the Constitution.
But of course, Trump failed. The outcome would have been far better if the Left had mobilized against him—in an American equivalent of, say, our Battle of Cable Street (more on that below). It’s deeply paradoxical and troubling to have to say that portions of the U.S. establishment were, on this occasion, better defenders of democracy than someone who had, after all, once been elected to the post of president. But sometimes the Left is faced with moments like that, when we are reduced to the role of spectators, and each alternative is so bad that the phrase “lesser evil” is wholly inadequate. We direct our anger first at the far right and hope they fail, not because we have any faith in the cops or in Trump’s deep-state antagonists but because without the freedom to organize, we have nothing left.
In Britain, we’ve been through three rounds of the executive insisting on its supremacy. The first was seen in the aftermath of our referendum vote to leave the European Union. Then-Prime-Minister Theresa May insisted that she had the authority to trigger “Article 50” and had no need to consult Parliament before writing to the EU announcing Britain’s departure. If you read the legal arguments made on her behalf, what is extraordinary is how closely they followed the argument over Executive Order 13769. Brexit, May’s lawyers argued, was a matter of foreign policy. That was and always had been a decision for the queen and not Parliament. It was one of a large number of areas where the queen, or more exactly government ministers claiming to have her support, could make and change the law, and no one could stop them. The British Supreme Court rejected that move, with more conviction than its U.S. counterpart.
The issue was litigated again in Autumn 2019. The new leader of the Conservatives, Boris Johnson, decided to “prorogue” (i.e., suspend) Parliament in order to force a settlement of our Brexit crisis without a vote. At the end of the vision of enhanced executive power, the Supreme Court warned, stood the threat of dictatorship:
Ministers are accountable to Parliament through such mechanisms as their duty to answer Parliamentary questions and to appear before Parliamentary committees…[T]he executive is required to report, explain and defend its actions, and citizens are protected from the arbitrary exercise of executive power.
Once again, the judges held that his plan was unlawful.
The third time, ministers had more success. In the first 12 months of the COVID emergency, the Government introduced 70 sets of Coronavirus regulations. All of these documents were lengthy, some were complicated. Together, they constituted a constantly-changing regime of thousands of pages of law, essentially a single piece of legislation being constantly changed and updated and complicated. Part of this process took the form of criminalizing public events, including protests. In the UK’s unwritten constitution, in principle, only Parliament can legislate to create a criminal offense; and any criminal offense must also be accessible—so an individual can know from the wording of the law how they could break it. During the pandemic, both of these conventions were ignored. Ministers made laws themselves, relying on the Crown’s unlimited power to make regulations in a way no peacetime government has done in centuries.
What needs to be emphasized is that allowing ministers to make up laws without scrutiny and change them on a whim led to bad law-making. The problem was not just that the laws increased the power of the police, which has been used against that force’s traditional enemies of workers and racial minorities, although that happened. The regulations were also bad in a second sense: For any law to be popular it must be seen to be fairly applied, something that could in theory impose a penalty on the government’s friends as well as its enemies.
But this is exactly what broke down under COVID. Because laws were rushed through and their meaning opaque, we have had a series of scandals involving ministers denying that they had broken the COVID rules, when they plainly had. At the height of the lockdown, the prime minister’s chief strategist Dominic Cummings fled from London, driving his wife who was suffering COVID and son 264 miles to his parents’ farm in Durham. Ministers insisted, with palpable dishonesty, that he had done nothing wrong. In January 2021, Boris Johnson was seen cycling seven miles from his home. Junior ministers flocked to the TV stations to defend him. Law-making and law-breaking of this nature has its counterpart in fiction in Lewis Carroll’s Alice in Wonderland, in the trial of the Knave for stealing the Queen’s tarts. The witnesses are threatened with having their heads chopped off. At last, Alice can endure the chaos no longer. She tells the King: “That’s not a regular rule: you invented it just now.”
(The next step of the COVID story has been a push back against the rule-breakers. This year, Boris Johnson’s advisers have received 126 fines from the police for their COVID breaches. You could see this as the part of the state that is always in power—the cops, top military officers, national security apparatus, and such—restraining, under popular pressure, the elected part that is merely passing through office. Rightly, everyone on the Left welcomes Johnson’s punishment; what’s troubling here is the reaction of the Labour leadership, which has been to over-identify with the unelected parts of the state, labeling Labour leader Keir Starmer as “Mr Rules” while keeping silent about how the burden of those rules fell hardest on working class and Black people.)
The Left here for the most part kept silent during the lurch to executive government under COVID. We did so for understandable reasons: There was a genuine health emergency; if anything, the immediate danger seemed to be a government that wanted to emulate Trump or Bolsonaro in leaving the population unprotected from the pandemic. The first victims of anti-protest laws introduced under COVID were not the Left; rather, they were anti-vaxxers and others from the far right. (Although, soon enough, our protest movements suffered too).
The government has sought to keep up something of the COVID state of emergency, even now that the immediate health crisis has largely passed. Laws have been passed criminalizing protest. Poor and Black voters are being disenfranchised by a new requirement to carry ID. Universities are threatened with legal action unless they actively platform pro-government speakers. The judiciary here has been cowed by laws to deprive judges of the power to rule on political cases and by the imposition of a new “British” bill of rights, its purpose being to take rights from everyone, especially from refugees.
Politics in Britain are ending up are somewhere depressingly like where this article began, the U.S. in 2017, with authoritarian populists using racist immigration laws to test out the boundaries of democracy.
Socialists in the UK are faced with a dilemma, one similar to that encountered by leftists in the United States during the Trump era. Under capitalism, most people enjoy no real democracy. In our elections, most voters will not be given the chance to vote for stronger trade unions, the protection of the environment, or abolishing the police. How could mere voting achieve the transformation in which we all believe at a time when less and less real power is held by the state and more in the boardrooms?
But if we were to respond to the attenuation of democratic norms solely by shrugging our shoulders and saying that there was no meaningful difference between liberal democracy and an authoritarian populist dictatorship, then that collective shrug would make life easier for those who plan to introduce not exactly fascism but the sort of post-democracy that now seems troublingly close at hand.
Earlier in this piece, I mentioned the 1936 Battle of Cable Street, when 150,000 anti-fascists defended the Jewish East End against an attempted pogrom led by Sir Oswald Mosley, a man who’d spent 13 years in parliament. He was a war hero and a friend of the king, and when the Left began organizing against him, he told his supporters, “This is the crowd that has prevented anyone doing anything in England since the war.” (The antagonism was mutual.) Obviously, when we talk about defending democracy, this is the sort of dynamic the Left wants to see: the police failing to break through our barricades. But in Britain, the last few years have been missing the sorts of mass mobilizations that have been experienced in the U.S., e.g., after the murder of Michael Brown in Ferguson or of George Floyd in Minneapolis. Sometimes we are placed in situations where that mass public is missing. Then, surely, what we have to do is to try and create it, find forms of protest that at least begin to teach people a sense of their own power.
I think of those friends of mine in the States who spent winter 2020 speaking out against voter suppression or who volunteered as election monitors. Of course, the best example of this work may be the crowds who protested in 2017 in the weeks following the deadly far-right rally in Charlottesville—in places such as Boston, where tens of thousands showed up to drown out the Right. We need to create something of the same spirit here, an anger directed not just at our home-grown far right, but also its allies in government.
Featured Image Credit: Photo by UK Parliament; modified by Tempest.
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David Renton is a barrister and a professor at SOAS University of London. His next book, Against the Law: Why Justice Requires Fewer Laws and a Smaller State, will be published by Penguin in July.