Enemies of the People! Who rules in a democracy?

Sunday 29 October, 10:0011:30, Cinema 3Law and Order

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From the English Civil War to the Chartists and the Suffragettes, there has been a gradual extension of democratic rights. In essence, we assume that every adult should have a say in who represents us and governments should rule with our consent – or at least, with the consent of those representatives. Recent events on both sides of the Atlantic, however, have raised questions about where power should ultimately lie in a democracy.

In the UK, the royal prerogative refers to powers formally held by the monarch, but in practice exercised by the government or according to constitutional convention. These prerogative powers allow the government to act in the name of the Crown rather than requiring the approval of parliament. Following the Brexit vote, the UK government sought to use royal prerogative powers to sever Britain’s ties with the European Union. This move was challenged in the Supreme Court, which duly ruled that only Parliament had the authority to undo such treaties.

The case created a minefield of contradictions. Those who wanted the referendum vote upheld in the name of democracy ended up arguing for the use of undemocratic prerogative powers. Those who wanted to overturn the democratic vote to leave the EU appealed to the sovereignty of parliament – even though the European Union has diminished that sovereignty in favour of unelected officials and unaccountable bodies in Brussels.

Are such constitutional questions any more than a fig leaf for competing political positions? Or are there points of principle at stake?

Meanwhile, in the US, President Trump’s attempts to use executive orders to ban immigrants from certain mostly Muslim countries and to reorganise the executive branch have been criticised as undemocratic, authoritarian and illegal. While the president enjoys a direct democratic mandate, the US constitution was deliberately designed to restrain the power of any one branch of government. And Trump’s opponents see his erratic presidency as just the kind of eventuality the constitution’s checks and balances were meant to contain. But is this not an implicit admission that the US is not really ruled by ‘we the people’ at all? Should democracies include provisions to prevent ‘the tyranny of the majority’ or is that a polite way of saying democracy is not really what we want?

Now that Britain is exiting the European Union, the executive will be more accountable to the people, if only because it can no longer claim to be constrained by Brussels. But should we go a step further and abolish the royal prerogative as a vestige of pre-democratic monarchy, or should we retain it on the grounds that it strengthens the democratically elected executive? Should Trump be free to do what he was elected to do or should Americans thank the founders for their wisdom in empowering the courts to keep power in check? Is Britain’s constitutional monarchy, with its unelected House of Lords, ultimately all that different from the US system? Is authority derived from ‘the people’ more legitimate than authority derived from ‘the Crown’? Is a muddled, partially democratic system better than the unconstrained rule of the majority? Or should we embrace fully fledged democracy, for better or worse?