Law over democracy: the left’s constitutional crossroads

A new essay collection from Policy Exchange reminds the left of a forgotten tradition.

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The Labour tradition was once characterised by a stubborn attachment to the ancient constitution and democratic authority. But for much of the last half century, many on the left have been steadily losing faith in electoral politics, putting their trust instead in the promise of the law, especially international law, and embracing a continental constitutional model. This has been a disaster, undercutting Labour’s commitment to building a democratic coalition that can deliver the sustainable parliamentary majorities necessary for transformational politics. 

The disruption that was the referendum vote to leave the European Union requires those of us on the left to think again about our constitutional commitments, to question the unthinking embrace of judicial power and retreat from parliamentary sovereignty. A framework for this exercise is laid out in Policy Exchange's new collection of essays, Judicial Power and the Left: Notes on a Sceptical Tradition, which examines the left’s historic constitutional tradition, and teases out the causes and consequences of its demise.

Traditionally, those committed to social justice and to protecting the interests of the working class distrusted the courts, judges and the common law. Legislation was seen to be a much more reliable vehicle than litigation for achieving lasting social and economic change. In particular, judges were suspected of misusing the common law to entrench the power of the propertied classes. The suspicion had grounds: in addition to well-known interventions to disable unions and to protect employers against workers, courts have at times wrecked housing policy in the interests of landlords.  Distrust was not traditionally limited to domestic judges, but extended to international courts. Attlee’s government resisted the creation of the European Court of Human Rights. The Human Rights Act and the EU Charter of Fundamental Rights would have been viewed with real suspicion by the intellectual giants of the left such as Harold Laski.

Why has the left abandoned this tradition? Perhaps in part because it has come to prioritise liberalism over socialism. But the change also owes something to electoral insecurity and the managerialism of social democracy. The law is a poor substitute for democratic politics, but the experience of Thatcherism led broad sections of the left to “prefer the shelter of continental structures”, as Cambridge University's Chris Bickerton puts it, and the EU vision of Jacques Delors came as a godsend as it “made it possible for hitherto fundamentally political disputes to be sent up to the European Court of Justice and resolved as technical matters of compliance with European treaty law”.

But sheltering from democratic politics is not sustainable – nor should it be. If the EU is a coordinated set of constitutional structures, entrenched in each member state’s legal system but effectively immune from amendment by the process by which they were imposed, then repudiation of the whole becomes rational. Seen in this context, objections voiced throughout the referendum were not so much to immigration as to powerlessness. The countervailing virtue of the UK’s traditional constitution, too often overlooked is its responsiveness – its openness to radical politics if and when a stable democratic coalition is willing to support them.  

Labour’s acquiescence to judicial managerialism and to European legal rights has meant that it has been dispossessed of its fundamental history and meaning. The wreckage of Britain’s membership of the EU, and Labour’s long embrace of the EU as an external constitutional framework, has left Labour without ready access to the political language necessary to make sense of this new moment. Institutions, citizenship, participation and the central role of democratic politics within a national polity have all been relegated to a subordinate position within the left compared to welfare, utility and rights.

The work of articulating a national renewal through the rebuilding of democratic institutions remains the central task of Labour today. It requires a clear-eyed acknowledgment of the political cost of abandoning a politics of democratic transformation, of subordinating parliamentary primacy and competitive politics to judicial-enforced treaty law. This matters in thinking through the shape of the UK’s future relationship to the EU, including the question of continuing entanglement in European legal frameworks. It is relevant also when it comes to legislating about how and to what extent to retain EU law after exit, including whether to retain the EU Charter, as well as to how we should approach questions about transnational adjudication of future trade deals.

The left’s embrace of judicial power, in place of its hard-earned scepticism, has been a political dead-end and is the wrong way to confront the challenges of our time. It also comes with a significant opportunity cost: intellectual firepower and human resources have too often been diverted away from the less glamorous task of shoring up democratic politics. 

The warnings from America on this front are chilling. As Gerald Rosenberg notes, "in the mid-twentieth century the Progressive agenda was hijacked by a group of elite, well-educated, and comparatively wealthy lawyers who uncritically believed that rights trump politics and that successfully arguing before judges is equivalent to building and sustaining political movements.” The result has been gravely weakened progressive politics, incapable of building and sustaining change, focused on the wrong problems, and courting an electoral backlash.

What is needed is to rebuild a Labour politics around the common good and a coalition of working class and middle class interests, grounded in our national community’s own traditions and institutions. After a half a century of technocratic and legal distraction, this is a daunting but necessary task. But the clock is ticking. Radicalism requires an appreciation of history and tradition. It is time for Labour to draw on that resource and reassert its commitment to democracy.

This is an adapted foreword by Jon Cruddas MP from Judicial Power and the Left: Notes on a Sceptical Tradition published by Policy Exchange’s Judicial Power Project.

Jon Cruddas is the Labour MP for Dagenham and Rainham.