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It has become a political fact of life that democracy on both sides of the Atlantic is under severe threat.

The latest proof of this danger is the Senate acquittal of Donald Trump in a judicial exercise that Stalin’s Moscow show trials look like paragons of legal transparency and justice. The Conservative British government is going in the same direction, albeit by a different route.

The root of the problem is respect—or lack of respect—for the rule of law. For democracy to work it needs clear legal parameters and elected political leaders who accept that their responsibility is to represent their constituents within a legally binding constitutional framework.

The importance of working within the law is emphasised by the fact that the American president, vice president, all cabinet members, senators, congressmen, judges, military officers, diplomats, civil servants from middle-rank and above, and all local elected officials right down to dog catcher are required by law to “solemnly” swear “to support and defend the constitution of the United States.” They cannot start their job until they have made the oath. And for the word “constitution” you may substitute “law” because the constitution is America’s legal framework.

Britain has a similar arrangement, although the monarch’s name is substituted for the word constitution. This is because the Queen is a constitutional monarch and the UK’s constitution is unwritten. Therefore, the oath takers swear allegiance to the Queen and “Her heirs and successors” as the physical embodiment of the nation’s laws, history, traditions and culture. Again, before an MP can take his seat in the House of Commons they must take the oath of office. The same is required of judges, diplomats, military officers, senior civil servants and most of the police. Newly naturalised citizens are also required to take the oath. Sinn Fein MPs do not sit in the House of Commons because if they took the oath they would explicitly recognise the law that separates Northern Ireland from Eire.   

The US presidential oath has been around since the first draft of the constitution was written in 1787. It was extended to everyone else during the Civil War. The British oath of allegiance dates back to the Magna Carta and has gone through innumerable variations. The current wording has its roots in Victorian England.

At no time are American oath takers required to swear a loyalty oath to any individual, political party or ideology. In fact, the founding fathers made it abundantly clear that was a definite no, no because they associated personal political loyalties with the monarchical-dominated feudal system from which they had crossed the Atlantic and fought a war to escape. The national interest and the law as set out in the constitution transcend all other loyalties.

The problem is that in today’s America, Donald Trump has managed to conflate the national interest with his personal interest. And he has dragged the Republican Party, the Christian Right and other conservative Americans into the same political quagmire. American conservatism is now tied to an individual who is prepared to solicit foreign governments for his personal political advancement and to withhold US government money as if it is his own to secure their cooperation. On top of that, he refuses to provide Congress with witnesses or documents so that they can properly investigate this abuse of power.  Meanwhile, the Senate Republicans, after taking another oath to act as impartial jurors, refused to allow witnesses to be called in the president’s trial so that a full and transparent hearing can be held. Instead they acquit the president after hearing from Trump’s own lawyers that he did what the House of Representatives said he did. Their defense? So what, he is the president, and besides, it wasn’t that bad.

In Britain the issue was not one of personal loyalty. Boris Johnson is not the sort of person to inspire a faithful following among Conservative party ranks. Instead it is born out of frustration created by the inevitable restrictions imposed by the law. Brexit and the issue of parliamentary sovereignty were the catalysts. Having gone down the referendum route, the government was faced with a parliament who thought that the anti-EU referendum result was a mistake and, constitutionally-speaking, parliament had the final say.

Boris Johnson tried to circumvent this constitutional nicety by proroguing parliament so that he could use his executive powers to enact Brexit while the Commons was in recess. The UK Supreme Court declared the move illegal.  His next move was perfectly legal. He called an election and won it with an overwhelming majority. Brexit is done. Or at least the basic framework is.  The sinews, muscles, tendons and vital organs of trade are yet to be negotiated. Johnson has set a tough deadline of 31 December for a trade deal. If it is not met, he will, as he has threatened before, go for no deal.

The Prime Minister’s 80-seat majority and total disarray in the Labour Party means that parliament is no longer a problem. The only potential opposition is from foot-dragging civil servants, the courts and the press. Johnson’s eminence grise, Dominic Cummings, is working hard to politically castrate all these camps. He has replaced career civil servants with political appointees; barred journalists from press conferences; threatened the BBC and Channel 4 over the renewal of their renewal of their licenses; banned from ministers from talking to the press and talked of curbing the power of the courts. Constitutional protections related to freedom of speech, press, and the independence of the civil service and the judiciary are under threat from an un-elected official who is more interested in pursuing a political agenda than protecting the rule of law.  

What value is a trade deal if our democracy loses the protection of the law?

Tom Arms’s book on Anglo-American relations (“America: Made in Britain”) is due to be published by Amberley Publishing in the autumn. You can subscribe to his free weekly podcast by emailing tom.arms@lookaheadtv.com

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