The ultimate safeguards for our democracy are undemocratic”. Discuss. To be able to state whether the ultimate safeguards for our democracy are undemocratic, it is important to be able to define exactly what democracy is. Many leading theorists, including Aristotle and Beetham, provide such a definition. Aristotle suggests that the basis of a democratic state is liberty. He goes on to state that democratic justice is based on majority decisions, to the point that in a democracy the poor have more power than the rich, as there are poor people than rich. Democracy also embraces the idea of individual freedom in that a man can do as he likes.
Beetham takes a more rule-based approach, stating that democracy is a mode of decision making about collectively binding rules and policies, over which people exercise control. Democracy is most effective when members collectively enjoy equal rights to take part in such decision-making. Next, the safeguards for democracy must be identified. They come in four primary forms, of which each will be discussed in turn: the Separation of Powers, the Rule of Law, the European Union and Parliamentary Sovereignty.
Firstly there is the Separation of Powers. This constitutes of three powers: the executive, legislative and judicial. As power is shared between the three, no one power can be too powerful, thus possibly undermining democracy. The above principle, suggested by Montesquieu in the 18th Century, could be argued as undemocratic. However, when such a principle is perhaps more of an idealistic theory than an actual practice, it appears that the Separation of Powers is not such a major safeguard as many regard it to be.
An example of this is in relation to the personnel. The major worry undermining this democratic safeguard is the overlap between the executive and the judiciary. The Lord Chancellor is both a cabinet minister and a judge, and whilst constitutional conventions prevent him from sitting in cases where the government was a party (and so to protect democracy), this is not always the case. It is near impossible to avoid cases with political issues in. However, change is in the process of being made, with the abolition of the Lord Chancellor’s post, and the replacement of it by the Minister for Constitutional Affairs. This would promote judicial independence far more.
This raises the main issue of accountability. The Lord Chancellor is not elected by the electorate, and therefore cannot be held accountable. Compare this to Parliament, who make law – the government are elected democratically, and thus are accountable for anything they do – this includes any attempts to undermine democracy. From this, we can say that judicial independence is vital to uphold democracy.
Aristotle states that democratic justice is based upon majority decisions; and whilst this is reflected in decisions made by judges and juries, it is still important to maintain the judiciary’s independence from the legislative and executive. This is due to their ability to undertake judicial reviews – these can include reviews upon how other powers are behaving, thus ensuring democracy is being served (that is, the government are doing as they promised when elected). Should they fall outside of these promises, they are in effect going against the theory of democracy (the idea of the majority of citizens having the power). A recent example of judicial review relates to the Hutton Inquiry.
Despite the judiciary’s usefulness in upholding democracy, they are criticized in that they are an undemocratic body in that the executive appoints the judiciary. A fair comment, yet such a system of “checks” appears across the three powers. The legislature enjoys dominance over the executive via the party and whip system, whilst the executive keeps check by the legislature through parliamentary scrutiny. This raises the question of whether the fact that they are undemocratic is truly a problem. As far as accountability goes – yes, it is a problem. As far as upholding democracy goes, so long as there are safeguards for democracy, there is no problem with them being undemocratic. As each power keeps in check with the other powers, this promotes Beetham’s idea of democracy, in that democracy is a mode of decision making about collectively binding rules and policies, over which people exercise control. If it is such, which it would appear to be, then democracy is being upheld.
The second safeguard for democracy relates to the Rule of Law. The principle states that the rule of law is a core minimum that everyone agrees to, and everyone in society is bound by the law and should follow it. Perhaps such an idea already goes against the idea of democracy in Aristotle’s view; that every man can do as they wish. But the concept needs to be explored further to see just how important it is as a safeguard to democracy. Entick -v- Carrington highlights the need for such a theory. The government were unable to find the necessary specific legal authority in order to obtain a warrant, and therefore went ahead anyway. Their defence for trespass was one of “state necessity”, but it was upheld that if there is no law, it is not legal.