Issue October-24
 

Democracy: can the Government dictate to the Judiciary

Probably nobody in their right mind would not condemn some of the terrible actions on both sides of the arguments we have seen in conjuntion with the protests.

Sir Keir Starmer has been crying out for tougher sentencing, the full force of the law, for people associated with the protests across England.

it made us, out of interest, wonder if this is actually his job. After all in a democracy there is supposed to be separation of power.

So let's look into the subject.

Probably like millions of others you learned that democracy is based on two basic principles.

The first principle is that democracy has three pillars of power

- the legislative: those that make laws,

- the executive: those that run the country using the rules given to them by way of or within those laws and

- the judiciary who decide in specific cases whether those laws have been broken and if so which punishment, if any, is relevant. Again based on those laws.

The second principle and possibly most important is the separation of power, meaning that the executive and judiciary should have no say in the creation of those laws by which we run our lives.nor should the legislation and executive have influence over how the judiciary handle their duties. Unless of course new laws are created.

Here we also come to the subject known to legal scholars as "ex post facto" meaning that people are subject to laws at the time they were created and so in lay terms if somebody committed what is now a crime but was not at the time he committed it he cannot retroactively be made culpable.

It is probably true to say that most democracies forbid the creation of ex post facto laws.

The United States constitution explicitly forbids it presumably because the constitution was written based on previous bad experience under the British monarchy where laws were sometimes changed retrospectively to suit the powers that be. I.e the Monarch.

In some nations that follow the Westminster (British) system of government, ex post facto laws may be possible, because the doctrine of parliamentary supremacy allows Parliament to pass any law it wishes, within legal constraints.

However Ex post facto criminalization is prohibited by Article 7 of the European Convention on Human Rights, Article 15(1) of the International Covenant on Civil and Political Rights, and Article 9 of the American Convention on Human Rights.

While American jurisdictions generally prohibit ex post facto laws, European countries apply the principle of lex mitior ("the milder law"). It provides that, if the law has changed after an offense was committed, the version of the law that applies is the one that is more advantageous for the accused. This means that ex post facto laws apply in European jurisdictions to the extent that they are the milder law.

Britain as a monarchy is by definition not a democracy or rather wasn't a democracy because the monarch originally controlled all three of these pillars but beginning with the signing of Magna Carta - which in certain cases is still very much valid and in effect - this power was relinquished to the point that we are a constitutional monarchy where laws are created by parliament, executed by the civil service and judged by the judiciary and only signed off by the monarch.

At least that is the theory.

In truth however there is not complete separation of power as most scholars would require of a true democracy. Experts will state that there is a mix of power between the legislative and the executive. Without going into the exact details here it is worth recommending that you read the wiki article on separation of powers in the United Kingdom

Many, but presumably not all, legal scholars and philosophers might agree as we have written that the three pillars of democracy are legislative, executive and judiciary. Again many but also not all will insist that a true democracy requires complete separation of these powers. No body or bodies can control or influence more than one of these pillars. A lawmaker for example cannot be a member of the judiciary, nor should a member of the executive, in our country the civil service, be a member of parliament or the judiciary.

In practice, at least in the United Kingdom, these principles have not been adhered to either in the past nor present.

The wikipedia article https://en.wikipedia.org/wiki/Separation_of_powers_in_the_United_Kingdom sums the situation up. Here it states "Historically, the apparent merger of the executive and the legislature, with a powerful Prime Minister drawn from the largest party in parliament and usually with a safe majority, led theorists to contend that the separation of powers is not applicable to the United Kingdom."

But also "The independence of the judiciary has never been questioned as a principle, although application is problematic"

At least in the case of the judiciary there has been an effort to keep separation of power:

Until 2009 we had Law Lords. On the commencement of the Supreme Court in October 2009 all current Law Lords became its first Justices. The first Justices remain Members of the House of Lords, but are unable to sit and vote in the House. All new Justices appointed after October 2009 have been directly appointed to The Supreme Court on the recommendation of a selection commission.

The rules and regulations governing the duties and restraints of a supreme court justice also prohibit, de facto, a judge from partaking in the executive, other than possible an advisory role in committees. See wiki https://en.wikipedia.org/wiki/Separation_of_powers_in_the_United_Kingdom Most other members of the executive are excluded from holding legislative office, including the Civil Service, the armed forces, and the police, some of whom are prevented from becoming involved in any political affairs. The crossover in personnel is effectively limited to ministers.

So is Keir Starmer within his rights in demanding more severity from the judiciary? Probably not. In truth he should know as an ex-barrister that he should leave the execution of any judgement in the cases of these protests to the judiciary who already have clear rulings on what is the law and if the law has been broken what punishment may ensue.

Here we quote from the Telegraph: Sir Keir Starmer has said that the jailing of three men for violent disorder is evidence of 'the swift action' that the Government is taking. Reacting to the prison sentences, the Prime Minister wrote on X, formerly Twitter: 'This is the swift action we're taking. If you provoke violent disorder on our streets or online, you will face the full force of the law.' Of course being careful and not opening himself up to arguments that he is going beyond his portfolio as prime minister he always adds the phrase, or similar, within the law.

This does not detract however from the fact that he is most likely effectively overstepping his mandate and meddling in the execution of the judiciary.

-pw- London

François-Marie Arouet - Known as M. de Voltaire

Je ne suis pas d'accord avec ce que vous dites, mais je d,fendrai jusqu'... la mort le droit que vous avez de le dire

I do not agree with what you have to say, but I'll defend to the death your right to say it


 
   
 
 
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