The Weinstein scandal is currently erupting all over the media and is due, given the increasing number of complainants coming forward, to become one of the biggest sex scandals ever. The real issue for society is the link between power, behaviour and the responses by institutions and others in leadership positions.

Nothing in this scandal is new and in fact for many decades we have seen people like Weinstein and their behaviour towards vulnerable and powerless people, not just women, replicated across many societies throughout the world. If a person or child is raped, sexually abused or treated violently and there is no recourse to law and justice, then that is a recipe for chaos, which will inevitably undermine the whole fabric of society.

It will create an impervious minority elite of powerful people, treating others as mere chattels and objects.

As with previous reported scandals, Saville, Heath, Janner and Weinstein to name a few, there seemed to be a level of knowledge about the activities of those people, of varying degrees, which was known and nothing done.

So during their lifetimes when evidence is fresh, abundant and current and more easily gathered, opportunities to gather this evidence are wasted.

People are not believed when they complain because how could this pillar of society, often senior religious leaders, in the case of the Catholic Church, knighted or Lords of the Realm possibly have done these things. Alternatively, the perpetrators in the cases of Rochdale, Oxford and many other places, are themselves protected by the racial sensitivities, which may be exposed if this investigation moves forward and anyway aren’t these young children and their families putting themselves in this danger and almost asking for it?

A culture is then created which protects the rich, powerful and famous or racially sensitive to the extent that the vulnerability and powerlessness is inversely increased and renders the victims to a state of abjectivity. No-one believes or wishes to protect us, because we are not worthy of society’s protection.

Weinstein is only different in that he is still alive. The evidence is available to be gathered and justice can take its course. Will he stand trial or even be convicted? We shall just have to wait and see, because the difficulties in gathering the evidence and placing it before a court is very, very difficult. Weinstein has already started his defiance and it is a classic riposte in these cases.

“Everything that happened was consensual”

But let’s look at the historical abuse cases and how they might be investigated effectively. A person comes forward to the police. Do they deserve to be heard and their allegations taken seriously?

Yes of course they do!

It is the job of the investigators to gather evidence, balance the evidence and then submit it to the relevant decision body to decide whether to prosecute or not.

There are only three types of evidence.

Forensic, Witness and Admissions.

All evidence falls into these three categories.

In these cases there will almost certainly be a lack of forensic evidence. Very rarely do the perpetrators admit to their crimes.

All that is left is witness evidence. The memory dims with time and the trauma involved in the case of victims. So, the question is what avenues are left open to the investigators to gather evidence of what may or may not have occurred?

Therefore, asking people who have suffered similarly, to come forward, is the only way to seek a weight of victim evidence. This is often a very traumatic process for people who have suffered. The investigator/team then correlates all the witness evidence and using a chronological timeline, looks for consistency of evidence across, similarities of places, people, behaviours etc, to create a credible bank of evidence. It is not a ‘Fishing Expedition” but a methodical, time consuming and detailed, evidence gathering exercise.

What then seems to happen is that particular areas of the media and particularly the right wing press start to undermine the process and create doubt in the minds of the public. Why, one may well ask?

The establishment figures, their progeny and networks also populate the powerful areas of government, media, news outlets and institutions to such an extent, that they can influence the public mood and even the impartiality of the police service. Columnists are openly lauded for undermining police investigations about powerful figures and often letters to papers are printed to that effect. Dominic Lawson has consistently complained in his Sunday Times column about police historical investigations. The reason seems “as plain as the pikestaff on your face” as is commonly said.

To protect the power they have.

Summary.

Leadership is about being authentic, consistent but most of all about being trusted.

There is a dearth of trust nowadays for people in the establishment and some of the recent historical sex abuse cases in this country have heightened the lack of trust felt by the public. No longer is it enough to be in a position of power to automatically be held in high esteem by the public. Leaders must demonstrate leadership in all they do on a daily basis. If that means exposing their peers as sex abusers, paedophiles or criminals. So be it.

Let us first of all understand exactly what we are talking about here.

Constitutional theorist A.V. Dicey gives the standard definition of what prerogative powers are:

 The remaining portion of the Crown’s original authority, and it is therefore, the name for the residue of discretionary power left at any moment in the hands of the Crown, whether such power is in fact, exercised by the Monarch him/herself or by his/her Ministers.

 Therefore:

The royal prerogative is a body of customary authority, privilege, and immunity, recognised in common law and, sometimes, in civil law jurisdictions possessing a monarchy, as belonging to the sovereign alone. It is the means by which some of the executive powers of government, possessed by and vested in a monarch with regard to the process of governance of the state, are carried out.

That is to say in layperson’s terms, as I understand it:

Ministers may act in the name of the Sovereign in a discretionary way as they see fit and without the agreement of Parliament.

This was most clearly demonstrated recently, when May the Prime Minister, who incidentally has never been elected by the people of this country, wished to use Royal Prerogative to exercise her personal view of the referendum result. She wished to be allowed under Royal Prerogative to exercise an exit from our long established treaties with Europe without recourse to seeking The House of Commons view on what that exit should look like, even though over 16 million people had voted against the motion. She wished to use Royal Prerogative to override the views of 16 million people in this country without any debate at a representative level (their elected representatives) and instead be able to say that the “will of the people” (the 17 million who voted for the motion) was to exit Europe under her personal guidance.

Clearly, this is not an acceptable way to conduct any representative democratic process.

As a result of May’s impertinence, Gina Miller took the government to court to question this process and the court after a government appeal, again found in Miller’s favour, that the government could not use such a prerogative to action a referendum result arbitrarily. As a result a government white paper was produced in Parliament and our elected representatives voted in favour to trigger Article 50 and put in process the two-year negotiations to leave the European Union, as decided by the majority of the public in the June 2016 referendum. I have no argument with that process; my argument is with Royal Prerogative.

David Pannick QC, who represented Gina Miller, (who should be honoured by the public for upholding the rules of representative democracy and not vilified) felt very pleased that the government could be held to account in this way and that through the law, no misuse of process would be allowed under a prerogative, which should have been rescinded (in my opinion) the day that Charles the First was executed. The whole purpose of the English Civil War and the subsequent reinstatement of an alleged benign Sovereign, answerable to Parliament, under the reign of Charles the Second, was to dispense with exactly this manipulation of process under an egotistical Prime Minister and her Cabinet flunkeys.

But, Pannick’s naivety is breathtaking. How accessible to the many people who may have felt aggrieved by the way the process was being conducted by May and her cabinet, is the law, particularly at the highest civil level? It is laughingly not accessible at all, unless one is extremely rich and able to engage a highly paid barrister initially and pay the costs in the event of failure! The government will not disclose how much of the public money was used to defend the use of Royal Prerogative and so it’s pretty certain it was a huge amount of money and Pannick also chooses not to say how much they charged to bring the case. However some recent reports show QC’s charging as much as £5000 a day for their services. It is also a long and drawn out process where there is no written constitution by which to judge the issue, involving a large amount of court time and public expense.

Therein lies the nub of the problem, Ministers can exercise Royal Prerogative and there is no written Constitution to provide a check and balance against this excess of power, unless one has access through extreme wealth to challenge the process under the law.

Let us now take the example of a country with a written constitution and a newly elected President who wishes to exercise a power through an Executive Order, which is contrary to the constitution. Elected representatives are able, within a very short time of less than a few days, to test that Executive Power in a court and the court is able to overrule that excess of individual power resoundingly, within the confines of the Constitution. This means that the President who has been elected, is always subject to the power of the Constitution through the legal process.

As was recently stated by an eminent judge in the USA, “We elected a President not a King”

He said that, because clearly a Sovereign is not elected and is therefore unaccountable to anyone or any representative body in the country. This is clearly demonstrated by the fact that the Freedom of Information Act does not apply to the Sovereign or his/her family. No ordinary citizen is able to hold to account any financial or personal action of the Sovereign or his/her family for anything, which we, the people believe, may infringe on our democracy. There are numerous examples of this at the moment including, Charles lobbying government, the cost of the refurbishment of Buckingham Palace from the public purse to name just a few.

Therefore the question raised by this article is “Who holds power in our country if politicians can glibly quote Royal Prerogative when wishing to exercise unrepresentative power”? And the answer must be that power ultimately still resides with the Sovereign as long as there is no written constitution.

So, if that is the case, why are we still persisting with such an outdated institution as the Monarchy? When it is clear that the resumption of Monarchy as prescribed by the aristocratic nobles who brought Charles the Second back to power, was only to support their position as the authority in the land.

We have now had nearly four hundred years of supposed benign power exercised by the Monarchy, surely if we are a country that can stand on it’s own two feet as advocated by the vote to exit the European Union, why do we need the Monarchy, Royal Prerogative and what is fed to us as benign power anymore. Let us stride forward into the sunlit uplands as a country and an independent people, provided by a written Constitution and a Presidential Republic!