The relationship between politicians and the domestic legal system is at the heart of the more general relationship between politics and the law. Most people would accept that politics and the law are different but overlapping realms, that not every political question is necessarily a legal question, and vice versa. But where people of goodwill differ is on what happens when a political issue may also be a legal one.
One sentiment which, when stated abstractly, almost everyone in a liberal society will nod-along with, is that politicians should be subject to the law. If everyone is equal before the law then that includes those with public power. Indeed, some would aver that for the rule of law to mean anything, the powerful must have the law above them.
This admirable perspective will sometimes suffer in concrete situations, however. People tend to be partisan in their politics, and so they will tend to want to be biased when it comes to which politicians they would like to see subjected to the full force of the law: “[X, who I oppose] should be locked up!” while “[Y, who I support] faces a witch-hunt!”—and so on.
There are, of course, those hyper-partisans who may believe that their political leaders should have absolute legal immunity, come what may. This appears to be the position of some of those who support, say, Donald Trump. The same hyper-partisans will also urge that Joe Biden or Hillary Clinton should be arrested, charged and prosecuted over alleged offences.
Such extremist exceptions aside, people generally like the notion that however mighty a politician may be, the law is something even mightier.
Against this there is a competing and contrasting sense that the law should not be (for want of a better word) “weaponised” as part of the political process. The correct way for a politician to be excluded from power is by defeating them in an election or outvoting them in a legislature, and not by arranging that they be arrested, charged and prosecuted.
What has happened in the United Kingdom, first with the so-called “Beergate” affair and now more recently with the controversies over the tax affairs of Labour deputy leader Angela Rayner seem distasteful to some. In both situations the serious accusations have turned out to be baseless, and the relevant authorities have taken no further action. But in the meantime, before these eventual outcomes, both cases received considerable political and media attention. Indeed, at times the front pages of some newspapers featured little else.
Such weaponisation of the police as part of the political process is, of course, unwelcome. But it is hard, if not impossible, to say where the line should be. Other politicians, in other parties, are also currently subject to police investigations which may have political consequences. In Scotland, for instance, the ongoing investigation into the Scottish National Party has certainly been a setback for that party in an election year.
The problem of the misuse of the legal process for political ends is unlikely to have any legal(istic) solution. If a matter is referred to the police then it should be a matter for the police whether to take it further. If a case is brought before a court then, similarly, what happens next should be for the court to decide. More rules cannot change this.
Reshaping our political culture is a more likely solution. The impulse to report one’s political enemies to the police for political advantage needs to be checked at source, rather than clapped and cheered. It should be seen as an unacceptable tactic and a shameful strategy, with adverse electoral consequences for those who seek to cheat the political process in such an underhand way. These sanctions against abuse need to come from within the political realm.
But this solution is unlikely to happen in practice. Those reporting their political opponents to the police and clamouring for arrests and prosecutions will no doubt continue to do this for the same reason that dogs lick themselves: because they can, and there is nobody who can stop them.
Our only hope is that the sight of first “Beergate” and now the Rayner tax matter falling flat will mean that the next attempt at such a legal-media event will have less purchase. Perhaps the law of diminishing returns will mean a diminished role for the law in our political affairs.
