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Eroding the rule of law, the SNP’s Brit-haters

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BRITAIN has been governed by some approximation to the rule of law since 1689. However, it has not had anything like full democracy for most of that period.  

It was only in 1918 that the franchise was extended to all men and to some women and only in 1928 that women were given equivalent voting rights to men, most of whom did not have them either before the 1860s.  

You can have the rule of law without democracy, but you cannot have democracy without the rule of law. That is clearly the highest apple on the constitutional tree. 

The rule of law is based on the idea of reciprocity in government, between the rulers and the ruled. Those who make the laws are ultimately responsible to those who have to obey them. That is what democracy is designed to achieve through the medium of constituency Members of Parliament representing the interests of individual people against overbearing government. 

Professional politicians started to emerge after 1918, when MPs were first given salaries. This was a well-intentioned attempt to permit poorer people, such as socialists, to stand for public office without having to be in hock to trade unions. Members should represent their constituents, not outside interests. 

That ideal was frustrated by the development of party machines in order to control members who might actually want to represent their constituents against the interests of the party which sponsored them. 

The result has been that self-serving politicians have become the bane of modern government, raising questions about the efficacy of democracy as a means of achieving reciprocity in government. 

At least one man foresaw all this over a century ago. Franz Joseph, the last Emperor of the Habsburg Empire, once said that he saw his job as protecting his people from their politicians. Alas, Woodrow Wilson, the Democratic President who represented the US at the Versailles peace conference in 1919 decided that ‘self-determination’ demanded the end of empires like that of the Habsburgs. 

That ushered in an era where people in less mature democracies gradually fell prey to party interests. The most extreme case was that of Adolf Hitler, who was appointed Chancellor of Germany’s Weimar Republic in a democratic process (of a sort) with the specific aim of destroying the rule of law and replacing it by the Führerprinzip and mob rule. 

Less extreme threats to the rule of law today include the openly corporatist government of the European Union. The most important fact about the EU, which the Europhiliac class in Ireland, Scotland, England and on the Continent fails to understand, is that the European Court of Justice (ECJ), which is the highest apple on the EU constitutional tree, is not a court of law. It is a court of purpose

That purpose is ‘ever closer integration’, as laid down in the Treaty of Rome, the legal instrument from which the court derives its legitimacy.  

This means that the court does not see itself as adjudicating between competing interests on the basis of ‘law and good conscience’, so much as resolving legal disputes whenever possible in the direction of increased integration – unless, some cynics would say, the vital interests of France and/or Germany are at stake. The ECJ is not an independent court at all, but an administrative organ disguised as a court. 

This is why, incidentally, the Brexit deal had to exclude oversight by the ECJ. The whole organisation is, at its pseudo-legal heart, a lawyerly fraud, as has been argued at length by several academics, including pre-eminently Peter Lindseth, Professor Comparative and International Law at the University of Connecticut. 

The EU model is the one favoured by the Scottish National Party, since it prefers parliament to represent interests rather than constituents.  

The biggest political interest in Scotland today is the loose coalition of self-righteous ‘Brit-haters’ who want to destroy the Union by any means possible, lawful or unlawful. In order to serve that cause, innumerable rules have been bent, constitutional principles violated and, as now appears possible, crimes committed.  

I have written at length about this in my book, The Justice Factory: Can the Rule of Law Survive in 21st Century Scotland?  

The rotten heart of the matter is that the SNP wants to restrict the independence of the judiciary. Since it has already politicised the civil service, this amounts to an attack on the separation of powers, without which we can have no control over who supposedly represents us in parliament. 

Without that control, reciprocity in government is at an end. Without reciprocity, there can be no rule of law. You only have to look at the powerless European Parliament to see how far that approach suits the purposes of the European Commission and the Scottish government in Holyrood. 

One final point: It is the rule of law which has essentially defined the United Kingdom since its formation. Defending it, even in the undeveloped state it was in the early 18th century, was the irreducible essence of our struggle against Louis XIV, as it was a few decades later against Bonnie Prince Charlie and his attempt to revive the divine right of kings.  

So too with Napoleon, the landed franchise pre-1832, the Kaiser, Hitler, the Arthur Scargills of this world and the Kremlin, from Lenin to Putin. 

It is also why we are bracing ourselves for defence against China’s President Xi and his lawless corporatist imperialists. The rule of law is, in a fundamental sense, what we are as a people. We must defend it or die as a nation whose existence has any meaning beyond mere duration. 

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Ian Mitchell
Ian Mitchell is author of ‘The Justice Factory: Can the Rule of Law Survive in 21st Century Scotland?’ (2020) Foreword by Lord Hope of Craighead, ex-Deputy President of the UK Supreme Court. Introduction to Part II by Alan Page, Professor of Public Law at Dundee, author of Constitutional Law of Scotland. 

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