Should anything be able to thwart the will of the people expressed through freely chosen and accountable representative institutions? This has long been one of the limit testing questions for modern political theorists.
Answer ‘no’ and you invite the nightmare of a putatively authoritarian regime propped up by populism. Answer ‘yes’ and you appear to question the one thing everybody is supposed to favour – democracy itself. Unsurprisingly, the view therefore drifts towards “it’s not quite as simple as that.”
But at a time where fear of terrorism has brought habeas corpus into question, raised issues about state security measures, thrown the power of our Justice Minister into relief, and will could well lead to the introduction of identity cards and other limits on personal liberty, this is more than an abstract question for classroom contemplation.
In Britain, the primary instruments of defence against tyranny are the framework of checks and balances embodied in an unwritten set of legal arrangements, the independence of the Judiciary and Executive, the protection of the Crown, and the incorporation of the European Convention of Human Rights into British Law.
However, in recent weeks and months abrogation of many safeguards seems at least to have been contemplated by parliament. And some would say the problem goes much further.
Lords and masters
When Jack Straw was appointed Lord High Chancellor of Great Britain and Secretary of State for Justice in June 2007, he became (unnoticed by most in the media, but not by constitutional lawyers) the most powerful man in the nation (yes, more so than the PM) and arguably since Cromwell. By virtue of his revised position he is now a Cabinet Minister sitting in the House of Commons, has a right to sit in the House of Lords (though not to be presiding officer as by right any longer) and is the head of the Judiciary, all in one.
Why isn’t anyone really up in arms about this? Well, specialist law journals did proffer critical analysis. But the wider media doesn’t find constitutional questions ‘sexy’.
Reformers have long held the UK's “fusion of powers” and the position of its Lord Chancellor to be anomalous in a modern democracy, but the status quo is that it “works” so long as everybody can keep everybody else arguing and no-one can easily usurp parliament.
That is where arguments about Europe and the Judges come in. As I write, the Conservatives have been threatening to take the issue of a referendum on the European Union Treaty (which is or is not a Constitution, depending on which side you are on) to the Lords, having lost in the Commons, partly due to a messy abstention that left egg on the face of the new Liberal Democrat leader.
The heat is about the boundaries of the sovereignty of parliament, and has also led to criticisms of the Human Rights Act, even though many ordinary people see this as an extension rather than a diminution of their rights. Then there is the issue of referenda per se. When and how do they extend or compromise representative democracy?
As for the judges, well the government clearly resents the “judicial activism” of recent years, whereby the courts, there to enact law voted on by parliament, have questioned the propriety of Ministers of the Crown on issues like the treatment of terror suspects and asylum seekers, and where there have been rows about the extent and nature of judicial appointments.
Then every day, some would argue, the necessary distance of civil servants from elected rulers is compromised by the politicisation of the system brought in by Thatcher and Blair, plus threats against whistle blowers. (Lord Hailsham’s ‘elective dictatorship’ was about executive dominance; but the problem can equally be the opposite). On the other hand, MPs get to vote on their own pay and conditions (another recent controversy), which seems to many an unacceptable abuse of elected power.
Lastly, there is the position of the Crown as a constitutional monarchy. In theory it protects parliament, but ironically it only does so by limiting the exercise of delegated power through the final suasion of a family system based on eugenic privilege.
Unlock Democracy, which emerged from the Charter 88 reform campaign, argues that “the inherited powers of feudal monarchs, modern media’s concentration on the Prime Minster and overuse of the party whip has turned Britain in to one of the most centralised countries in Europe.”
It also points out that “despite advances such as the creation of the Human Rights Act, a simple majority in the House of Commons can curtail our rights and freedoms by changing our unwritten constitution.”
These are among the most basic issues about Britain’s constitutional settlement which are not going to go away.
The church and democracy
The institutional church has not always been an ally to democracy, to put it mildly. Nevertheless, in 1647, amid the pews of Putney parish church in southwest London (where Ekklesia associate Giles Fraser is now vicar), rank and file Roundheads, led by Leveller agitators, argued their case for a transparent democratic state based on suffrage, religious toleration and the rule of law.
Cromwell subsequently went on to crush them, but the momentum for change continued and became unstoppable.
This is an honourable heritage deeply consonant with the radical egalitarianism of the Gospel message, which concerns an ‘upside-down kingdom’ where the hungry are fed, the powerful are humbled, outsiders are welcomed in and strangers become friends.
Of course the polity of church as 'the Body of Christ in public' is not simply about following majority whims. It is about discerning right, developing personal and social virtues, creating patterns of discipleship, modelling alternative ways of living justly and peaceably, worshipping God in spirit and truth, and where necessary resisting the powers that be.
Though you might not know it from the travesties going on in different parts of the worldwide Christian community, the vocation of the church is therefore about the creation of a laos (personhood oriented toward the transforming grace of God among comrades) rather than simply a demos (contractually framed social relations among strangers).
By the same token, systems of wider societal governance which build genuine accountability, respect, human dignity, freedom and popular choice into the fabric of public life can only be seen as goods in a world where force and injustice can otherwise prevail. They are a practical investment in hope.
How that hope is sourced, identified named and shaped is not without theological significance, of course.
© Simon Barrow is co-director of Ekklesia. He blogs at http://faithinsociety.blogspot.com, as well as contributing to Guardian Comment-is-Free, Open Democracy and other media outlets. His website is www.simonbarow.net. A considerably abbreviated version of this article appears in the April 2008 Westminster Watch column in the revamped Third Way magazine.