Democracy and Power: Upholding the Law

An interview with Sam Fowles

“The essence of democracy is that power is shared and that we, as citizens, have control over our leaders. When power is abused, it’s a real threat to democracy.”

The work of lawyers, juries and judges is often performed behind closed (courtroom) doors. Yet, with increasing media and public interest in how — and whether — justice is actually served, ‘the Law’ is becoming less of a lofty concept and more of an everyday concern.

According to barrister Dr Sam Fowles, it’s vital that we understand both our responsibilities and our power as citizens of a democratic society. To help in this endeavour, Sam published his first book in June 2022. Aimed at a general readership, Overruled: Confronting Our Vanishing Democracy in 8 Cases explores the inner workings of the justice system, governance and democracy.

Sam specialises in public and constitutional law, working to uphold democratic rights and fundamental freedoms in the United Kingdom, Europe, Australia and the USA.

You’ve been involved in several high-profile cases, taking the likes of Boris Johnson, the British Post Office and the Metropolitan Police to court. What impact does the inevitable media attention have on your work, with regard to the proceedings and verdict?

In terms of the decisions made in court, media attention shouldn’t have any impact at all. This is why courts are so important: they will answer the question before them on the basis of the law, rather than what the media is saying.

In terms of my experience, the first few high-profile cases I worked on were very exciting. But nowadays, we get this extreme vitriol in the media towards courts and lawyers — or, in fact, anyone who doesn’t immediately agree with the government. I’ve been accused of being ‘an enemy of the people’ and ‘betraying the country’. That can be unpleasant, but a barrister’s job is to represent their client and win the case. It doesn’t matter what people are yelling or writing about you; your sole concern is to get the best results for your clients.

Surely it depends on the newspaper and its political alignment?

Absolutely; it’s not as if the New Statesman is writing horrible things about us. This isn’t usually a big deal for me, but there was one incident in 2019 that did scare me. We had just won the prorogation case and restored Parliament, and the government’s next gambit was to refuse to comply with the Act of Parliament that requires them to seek an extension. That was shocking because the British constitution is almost entirely based on a requirement to obey Parliament.

When someone is about to break the law, lawyers go to court and request an injunction against them. This is essentially what we did — although injunctions are usually issued against someone for trespassing on their neighbour’s garden, not against the British Prime Minister for making fundamental constitutional changes!

One of the tabloids reported that the lawyers involved in this case were being investigated by the Security Service on suspicion of treason; apparently, we’d colluded with foreign powers to enforce what the government called the ‘Surrender Act’. This turned out to be completely untrue, but it did give me pause.

I suppose the downside of a high-profile case is the knock-on effect it has on public opinion and the media.

I was fortunate enough to have the opportunity to work on this sort of case relatively early in my career. Initially, I was a junior barrister doing research and writing arguments to ensure that the lawyers had everything they needed to make a case. But I was soon standing up in court myself, as an advocate.

I remember the trade papers case, which was about the British government’s decision over whether or not to disclose its negotiations with other states. There were two very senior lawyers representing the government and the Information Commissioner’s Office, and I was sitting there thinking, ‘Oh god, this is all on me!’ That was scary, but then the judge walked in saying, ‘Right, what have you got for me?’, so I just had to get on with it.

Looking at your career so far, you’re evidently passionate about defending public freedom and democracy in the face of institutional corruption and misconduct. What inspired you to practice law?

When I was 17, I was awarded a scholarship by the US Congress to study in Washington, D.C. and New York. While I was there, I attended a lecture by Fadi Elsalameen, a campaigner for peace between Israelis and Palestinians. He told a story about asking his little brother, who was still in Gaza, what he wanted to be when he grew up. His brother said, ‘I wanna be George Bush or Ariel Sharon’, who was Prime Minister of Israel at the time. These incredibly powerful world leaders were the only two people he knew of who had agency and control — not just over other things, but also over themselves and their own lives.

That story made me realise that it’s wrong for people to feel powerless, and I wanted to change that; I asked Fadi what I should do and he said, ‘Become a lawyer’. The courtroom is one of the few places where someone will do their absolute best to argue your case — whether you’re the Prime Minister, a billionaire or a homeless person. It’s an important leveller.

At least, that’s how courts are supposed to work, but they increasingly don’t because of cuts to legal aid. Most people now can’t afford a lawyer, so it’s no longer the great equaliser it was when I joined the legal profession, but I try to work pro bono when I can to help people out.

And, of course, lawyers are also responsible for ensuring that people use their power correctly, rather than abusing it.

Absolutely! The essence of democracy is that power is shared and that we, as citizens, have control over our leaders. When power is abused, it’s a real threat to democracy. How much are we worth as citizens, as people? How much are we empowered? Are we worthy of dignity and respect? All of that is undermined by an abuse of governmental power, which is why it’s essential to talk about this — not just in the courtroom, but in society as well.

I totally agree. In Overruled, you explore both the systematic and everyday consequences of the recent chaos in British and international politics. Why is it so important for the public to understand the inner workings of British governance, as well as potential threats to their rights?

There’s a famous Latin phrase that I can’t actually pronounce, so I always translate it into English: ‘Who guards the guards?’ In the UK, it’s us; British citizens are the fundamental building blocks, source of power and safeguard behind the British constitution. We are only a democracy now because citizens in the past demanded it. It’s not as if William Pitt (the Younger) thought, back in 1804, ‘You know what? More people should be allowed to vote. We need some democratic safeguards’. In reality, it was ordinary people who fought for democracy. These people were often beaten or killed for their beliefs — and indeed still are, simply for standing up to the state, which is what happened in the Clapham and Bristol protests.

It’s important that we understand our own power, because it could so easily be taken away from us. Every year in school, I was taught a bit about different areas of history, but I always ended up learning about the Nazis again. As a result, people develop the idea that democracy dies with fireworks and marching soldiers. But, actually, more democracies fail because their citizens give up. It doesn’t happen overnight in a Reichstag fire or a military coup; it happens gradually over the course of several years — perhaps too slowly to notice.

As I say in the book, if any one of these things happened, you’d think, ‘It’s not great but let’s calm down’. The issue is that they are all happening at the same time. It’s crucial to understand our constitution and be aware of what’s going on in politics and society because, ultimately, it’s on us.

The idea that citizens need to be empowered to uphold democracy is especially interesting in light of what’s happening in Russia at the moment, where people are being silenced and beaten in the streets for protesting. It seems like the Russian public has no voice.

Russia is a really interesting example. Obviously, it’s more extreme than what I’m talking about, but Vladimir Putin didn’t come into power announcing, ‘I’m going to start invading my neighbours!’ He became President by insisting, ‘We need to take back control. We need to restore Russian pride’. That escalated to accusing anyone who didn’t conform to his concept of “Russian pride” of being a traitor and working with the West. It also evolved into gradual control over the media. A lot of people in Russia don’t know what’s going on in Ukraine at the moment because the Russian media is presenting a glorious Victory Day.

But that’s not how it started. Putin was, and technically still is, elected democratically — although I think he somehow won 104% of the votes in the last election. When he came to power over 20 years ago, Putin wasn’t immediately a dictator or a threat to world peace; he only became one by eroding all of Russia’s institutions.

It’s pernicious, which is why it’s so dangerous. Going back to your book, which of the 8 cases covered in Overruled was the most interesting or enjoyable to write about?

It was fun telling the behind-the-scenes story of the prorogation case, with people racing to give the Queen a letter before claim. But that case made me realise that democracy can’t be protected solely in court; the justice system is actually a fairly limited tool. The essence of democracy is culture and belief, so it was more interesting to observe how those things were manifested away from the spotlight, like in the housing cases.

I’ve also got an odd story about someone threatening to stab me. When I was in a really junior position, I worked on several housing possession cases involving people who hadn’t been paying their rent. The first case concerned a family whose Universal Credit had been stopped for some reason. They arrived at court with a Tesco bag full of bits of paper, which the duty solicitor and I spent the day sifting through. We worked out that it was Universal Credit’s mistake, so I said to the judge, ‘I know I’m here for a possession order, but it’s not their fault that they haven’t been paying their rent. Can we push this back by 6 months and sort it out?’

The next case involved a woman who did have some savings, so wasn’t entitled to Universal Credit to cover all of her rent. She hadn’t been contributing any money herself, so had fallen behind on rent payments. I didn’t think she should lose her home over something like that, so I said to her, ‘If you agree to pay a few pounds a week towards rent and £1.70 per week towards arrears, I’ll ask the judge to give you some more time’. But she wasn’t happy with that; she wanted the same deal as the first family. I explained that they were entitled to more benefits than her, but she thought they got special treatment because they were ‘immigrants’ (they were actually from Hackney, London).

The situation she was in was partly caused by her own actions, but also partly due to the government’s economic choices. Some MPs have made deliberate decisions, like cutting back on housing benefits, that make people like her victims of the system. But she wasn’t blaming the decision-makers; she was angry at the people that the government and the media had told her to blame for her plight — people like her with the same problems, suffering from the same economic decisions. She ended up attacking the one person trying to help her, threatening to stab me and warning me to watch my back.

The core problem with British politics is that so much of what we believe is not actually real; it’s almost as if public debate happens in a parallel universe. This means that it’s almost impossible to do democracy like we’re supposed to, because you can’t hold someone to account if you don’t know what’s really going on. The government now seems to be actively weaponising this distorted perception, as is the case with the Northern Ireland Protocol. A succession of ministers have been saying, in TV and radio interviews, that we need to overturn the protocol because it’s bad for Northern Ireland’s economy. In reality, Northern Ireland is doing better than anywhere else in the UK, except for London. So, we’re having this whole public debate on the basis of a series of things that are simply not true!

That’s why your book is so valuable, because it empowers the public by helping them understand the context behind legal and political issues. The real challenge is bridging the gap between a ‘dull’ topic and accessible, relatable narratives. Do you use any particular techniques in your writing to achieve this?

Almost every case has a fascinating human story at the heart of it, but it’s rarely reported in the media. That’s the real reason I do this job. I’m interested in legal technicalities and principles, but that’s not really why I care about court cases; I care because they involve people who have overcome significant challenges.

When I write, I try to get to the heart of the human story — for example, how people are materially affected by government decisions. That’s how I attempt to break down the barrier and make this topic seem (at least marginally) less stuffy.

Human connection is extremely valuable! To sum up, can you offer 3 key takeaways from Overruled?

The first key takeaway is that democracy — the heart, the essence of democracy — is the empowerment of citizens. And that’s something we’ve had to fight for.

The second one is that the deliberate actions of successive governments have disempowered ordinary citizens, while empowering unaccountable institutions. It’s in vogue to say that Boris Johnson is uniquely terrible, but I actually think he’s just the latest stage in a series of democratic erosions. This is why my book spans 10 years, rather than just covering the past 4 years.

The third takeaway is that it’s ultimately on us, as citizens, to uphold democracy. Our constitution and society only started moving in a democratic direction because we demanded it. Similarly, we will only lose democracy if we give it up, so it’s our responsibility to reject any false narratives spun by the government and its media allies. It’s up to us to do more research, to oppose undemocratic legislation and to avoid blaming scapegoats.

As a rule of thumb, problems in society are much more likely to be caused by powerful people than by powerless people. So, if we get angry at immigrants or workers on strike, we should ask ourselves, ‘Who has the real power and who doesn’t?’