Source > Open Democracy
David’s new book ‘Against the Law: Why Justice Requires Fewer Laws and a Smaller State’ is out now on Repeater Books.
When authoritarian populists take power, they use the law to roll back our rights. They can do it through existing structures, as Donald Trump did when he stacked the US Supreme Court with right-wingers who are now trying to outlaw abortion. Or they can undermine the law itself, as Viktor Orbán has done in Hungary with his muzzling of the judiciary.
Britain is no stranger to these methods. Our government has passed legislation to criminalise protest and punish refugees, among other things – while also bragging about its willingness to ignore international law when it wants to.
No wonder, then, that so much of the fightback is taking place through the courts. Campaigners are resisting these attacks on our basic rights through high-profile legal challenges, backed by crowdfunding campaigns and awareness-raising drives. Slogans like “save the Human Rights Act” and “defend judicial review” have become rallying cries for some.
Yet although these courtroom battles are necessary, they won’t be enough.
As a barrister, I have spent my career defending people’s rights to housing and fair treatment at work. But if, like me, you want to see a more equal society and the gap between rich and poor reduced – or even abolished – then we need to be thinking beyond the law. In fact, one thing we should be doing is arguing for less of it.
You might be wondering why a left-wing lawyer would call for fewer laws. Isn’t it the Right that argues for shrinking the state? Isn’t it the case that every popular movement in history has gone into battle with the state, and left the traces of its conflict in rights to protect workers, women or Black and minority ethnic communities?
But laws have just as often emerged to tame insurgent forces as they have done to satisfy their demands. And in Britain, the law has developed in a particular way that makes it harder for ordinary people to change the way society is organised.
Our reliance on law teaches people that change must come through the work of others: it is the task of lawyers fighting courtroom battles, rather than of the people themselves. And it makes us reliant on a system that is often stacked against us.
Over the past 40 years, the law has grown at dizzying speed. Each year, around 14,000 pages of new legislation are added to the statute book – twice as much as 40 years ago. Whole fields of law that did not exist in living memory, such as immigration law or information law, now proliferate.
Every government since 1979, whether it has promised to shrink the state or expand it, has contributed. Secondary legislation – rules made by ministers with little parliamentary oversight – increased by half under Thatcher. Blair passed 382 new acts. Cameron, who promised a ‘bonfire of red tape’, created 1,785 new crimes, or one new offence for each day the coalition was in power.
This isn’t a natural occurrence. The total sum of human knowledge grows every year; this is routine and normal, and no one complains about it. But there is no reason why the laws that govern our lives must become more complicated. In fact, it would be just as logical to think that an advanced society would be one where laws had been simplified and rationalised down to a coherent minimum.
The expansion of the law has been driven chiefly by neoliberalism, the economic ideology that has dominated British politics for much of the past four decades. Governments since Thatcher have constantly sought to create new markets: in the NHS, for the supply of water, gas and electricity, even in our responses to the climate crisis. (Rather than banning carbon emissions, we have created systems for trading them. The result is faster global warming.)
As Milton Friedman argued in his 1962 book ‘Capitalism and Freedom’, the creation of markets requires an expansion of the law, with judges needed to enforce the rules.
Another reason for the law’s spread is that neoliberalism involved tilting the balance of power away from ordinary people and towards capital. Governments have used the law to freeze this new balance in place. Where governments have taken rights away from the poor in large numbers – for example, by removing rent controls – these rights have not been taken away entirely.
Instead, a tangle of new laws has obscured the stark loss of rights and made it harder to fight back against them.
In housing law, a small and declining group of people have been left with full protection, while new groups of people have fewer rights, under a bewildering array of different statuses. The best protected tenants have Rent Act tenancies (which stopped being available in 1988) or secure tenancies with local authorities. Around this core are a bewildering series of other people, each to some extent disenfranchised: flexible tenants, introductory tenants, demoted tenants, student tenants, asylum seekers, service occupiers, property guardians, holders of housing for the homeless, and so on.
Having too much law makes it harder for everyone to understand the rules that hold society together. I wonder how many people reading this piece remember what the terms are of their employment contract or their tenancy agreement. How many people could list the rights they have as workers or tenants that they can enforce even if these are not specified in their contracts? Who has read their insurance policies or considered their rights when Google or Facebook change their contracts?
The law also makes courts the mediators of social conflict. The modern employment tribunal system, first introduced in the 1970s by a Conservative government that explicitly aimed to weaken trade union power, is one such example.
Just over 50 years ago, where people wanted to enforce their rights, they did so in their own workplaces with the assistance of their unions. Today, instead of workers responding to a dismissal by threatening industrial action, it is far more common for unions to threaten the employer with a potential tribunal claim.
Employment tribunals are not completely toothless, and for the employer, a threat to resort to one carries a risk: tribunals are slow, preparing for them is expensive and time-consuming, and if a worker wins, their victory may be reported in the press. But from the perspective of the worker, median awards are derisory – just three to six months’ wages for both discrimination and unfair dismissal claims.
Fewer than one in a thousand unfair dismissal claims result in an order for re-engagement or reinstatement. Under a legal system of resolving complaints, workers’ jobs have become less secure and their ability to protect their jobs weakened.
At the other end of the scale, when campaigners use the courts to challenge overbearing government policies, there’s no guarantee that judges will take their side.
Within the judiciary, conservatives outnumber liberals. And even those liberals on the bench are now under huge pressure to limit their criticisms of government. Between 2020 and 2021, the proportion of judicial reviews that succeeded at the High Court fell by 50% – a startling change. Judges are presently upholding the government’s decisions in unprecedented numbers, in the hope that ministers will get bored and find someone else to attack.
There’s another reason that campaigners should be wary of an over-reliance on the law. Forty years ago, the Right won popular support for its neoliberal reforms by making the Left look like the conservative force in society. It offered freedom by attacking trade unions and dismantling parts of the welfare state, institutions that the Left then had to defend.
Today’s populists offer a break with neoliberalism – think of Boris Johnson’s ‘levelling up’ agenda – but they employ similar framing as their predecessors on the Right, offering people the chance to ‘take back control’ from a liberal elite.
One reason why neoliberalism and populism have succeeded as politics is because millions of people intuitively grasp and accept that a weakened state might provide more opportunities for them. The problem is that these ideologies target the wrong bits of the state. Instead, they end up producing more regulation, more laws and more bureaucracy.
What can we do instead? For a start, we could demand the law is simplified. This is already happening in employment law, where campaigners are fighting to ensure that all workers are entitled to a national minimum wage, and to get rid of contracts that categorise new forms of precarious employment as self-employment.
It is happening in housing law in Labour-led Wales, where the government is simplifying the number of different kinds of tenancy. Soon, there will be only two types of tenancy: ‘community’ and ‘private’. This will make it much easier for tenants faced with eviction to find out what rights apply to them, and whether they can stay. Frustratingly, no such simplification is on offer in Conservative-ruled England.
Campaigners also need to be less reliant on the law itself, seeking legal victories through the power of our mass movements, rather than through the courts. The increasingly frequent protests against immigration raids, for instance, are a powerful symbol of the extent of opposition to Home Office policy – but they also create vital breathing space for individuals threatened with deportation to prepare legal appeals against immigration decisions.
The RMT strikes are another example. There is no law that allows a worker to force their employer to preserve real wages during a period of inflation. When an employer insists on what amounts to a pay cut, the worker can defeat them only by striking. For that reason, when the law has been brought into the rail workers’ dispute, it has not been because the workers wanted it, but as a result of what has so far been a hollow threat by the government to mobilise agency workers to replace rail staff.
If rail workers are winning their dispute – which they so far appear to be – that is because they have mobilised their own numbers, closed down the railways, and used their own strength against the bullies in government.
By thinking beyond the law, we can build the social movements necessary to defend ourselves as we enter a period of economic and environmental crisis. We need to lose our deference in the face of the continuous expansion of the law, and show that we are the people with the ideas.
It is in moments when you can see structures of law being dismantled, and they cease to seem permanent, fixed and unchanging, that you can start to imagine a different kind of legal system – one that corresponds to the needs of workers and nature.
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