The Economist has dubbed him a “middle class hero”, and Starmer has emerged as a talisman for those who would like a return to centrist “normality” circa 1997. But, above all, Starmer represents the lawyerly type, who are unreliable allies for the left.
Sir Keir Starmer’s arrival as Labour leader has been praised by professional commentators, The Economist quickly dubbing him a ‘middle class hero’. Supporters have praised his ‘forensic’ cross-examination of Boris Johnson’s mismanagement of coronavirus and early polling has been favourable, with solid personal numbers and the opposition recently drawing level with the Tories. Yet things are not as rosy as they first appear – Starmer is uniquely vulnerable to a fomenting frontier in the culture war. Twice at Prime Minister’s Questions, Boris has mocked his past as a lawyer, where he made his name in high-profile human rights cases before switching sides to become England’s top prosecutor. The PM’s boorish banter fell flat but continued to establish the PM’s attack on Starmer’s credibility. More pertinently, it spoke to a longstanding tradition of Tory lawfare, Keir’s quietly colourful legal career and Labour’s dubious devotion to liberal legalism.
‘Enemies of the people’
The delegitimization of the judiciary has been key to populist Conservatism for decades. EU membership required the acceptance of rulings of the European Court of Justice in Luxembourg, including judgments forcing British fishing waters open to European ships which decimated domestic producers and fuelled Euroscepticism in coastal areas. More recently, two cases severely undercut the right to strike. The supremacy of EU law and a perceived loss of parliamentary sovereignty helped inspire Vote Leave’s slogan ‘Take Back Control’. A High Court decision requiring legislation before the UK left the EU saw The Daily Mail label three judges ‘Enemies of the People’. Despite Britain’s departure this January, Brexit has not severed our ties to European courts or allayed Tory concerns over judicial activism.
In response to the atrocities accompanying World War II, Britain helped found the Council of Europe in 1949. A British Tory was instrumental in drafting the Council’s European Convention on Human Rights, which guarantees a series of civil and political rights, and in establishing its court in Strasbourg. Although Britain generally complied with Convention rights, they were unenforceable in domestic courts. This enforcement gap facilitated failures to protect minorities, notably including a ban on LGBT military service.
The Human Rights Act was introduced in 1998 under Tony Blair and fulsomely praised by Starmer in his maiden Parliamentary speech. It enabled judges to reinterpret existing laws to comply with the ECHR, void administrative actions by government agencies and declare legislation incompatible with Convention rights, albeit without striking it down. The Act obliges judges to consider rulings of the European court, prompting Lord Rodger to conclude: ‘Strasbourg has spoken, the case is closed.’ The Human Rights Act represented a subtle yet significant shift from A.V. Dicey’s classical position that Parliament had: ‘the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.’ Although the ECHR coheres with economic models including Nordic social democracy, the passage of the Human Rights Act reflected a pattern of left-leaning parties around the world adopting bills of rights and intense judicial review, to not only ‘prettify neoliberalism’ as Yale law professor Sam Moyn puts it, but also New Labour’s embrace of the carceral state and pro-management labour law. The Act, passed as Gordon Brown stuck to Tory spending plans and later complemented by an Equality Act silent on class and intensely relaxed about 117:1 executive-worker pay ratios, can hence be seen as an enactment of Blair’s Clause IV moment.
Human rights laws have been subjected to controversial criticism from the Tory right and a hostile media. Proposed reforms have featured in Tory manifestos since the Act passed. It started with a pledge to exempt the armed forces in 2001 and a vow to review the Human Rights Act in 2005, culminating in a commitment to replace it with a ‘British Bill of Rights and Responsibilities’ for the last four elections. Particular flashpoints have included prisoner disenfranchisement, litigation on prison conditions, and contested deportations of so-called ‘foreign national offenders’. After the Cameron government’s attempt to repeal the Act failed, the think tank Policy Exchange, founded by Michael Gove, laid the groundwork for future reforms with its Judicial Power Project. The Johnson government’s Constitution, Democracy and Rights Commission is being led by an advocate of HRA repeal. Its ensuing drip-feed of reports and White Papers will force Labour into agonizing decisions about its response, facing a pincer movement from lawyerly pro-Europeans and Eurosceptics not satisfied by Britain’s departure from the single market. The PM’s chief advisor Dominic Cummings has advocated for a referendum on the ECHR, arguing: ‘people probably think we’re already leaving it because of the 2016 referendum, so imagine how mad they’ll be when they realise we’re still in it.’ Desperate for a dead cat strategy amidst the worst recession in recent memory, human rights reform makes an ideal wedge issue.
The Tories are waging a parallel war on judicial review of administrative decisions by state agencies such as local governments and the police. Contentious decisions preventing deportations, executive EU withdrawal and the prorogation of Parliament have raised the salience of the issue. The Conservative manifesto committed to ensuring such actions are ‘not abused to conduct politics by other means’. Retired Supreme Court judge Lord Sumption, a vocal critic of judicial activism, has advocated a narrowing of its scope. Attorney General Suella Braverman, along with countless Conservatives, agrees, urging Parliament to ‘take back control’ from judges.
Starmer’s Human Rights Dramas
While Starmer’s leadership campaign stressed his advocacy of workers and trade unions, another period in Keir’s career was afforded less prominence. Over nearly a decade, he was engaged in an array of cases against the Home Office, Ministryof Defence, police and prosecution and the court system. While he has recently scolded anti-racism campaigners and environmentalists, he once represented an Iraq war protestor arrested inside a US airbase after allegedly damaging the perimeter fence and reportedly intent on burning a B52 bomber. The activist was acquitted after juries twice returned no verdict. Sir Keir later defended campaigners involved in direct action against a factory and employees involved in designing and producing weapons for American, British and (the group alleged) Israeli forces, against an injunction preventing further protests. The case was settled out of court. Starmer successfully challenged the procedural fairness, but not the factual basis, of the deportation of an acquitted terror suspect found by a specialist immigration appeals court to be a long-standing extremist and a national security risk who warranted deportation.
Perhaps most contentiously, he unsuccessfully challenged the lawfulness of the extradition of Khalid Al-Fawwaz, then accused of conspiring with Osama Bin Laden as part of al-Qaeda in connection to attacks on American embassies in Kenya and Tanzania and eventually sentenced to life in US prison in 2015.
Of course, lawyers need not sympathize with their most objectionable clients andI see no basis for inferring Starmer did so – he credibly refuted similar allusions from Boris Johnson by emphasizing his prosecutorial record. Nor did I find any indication of professional misconduct – you could fairly write this off as ‘human rights lawyer did his job’. Conservative commentators will nevertheless note his wealth afforded him ample agency as to the work he took on and have previously found controversial clients an effective angle of attack – the O’Starmer Bin Laden headlines feel grimly inevitable. Labour leaders have gone to desperate lengths to prove their patriotism – the QC will be judged and may well be found wanting.
Human rights repeal poses problems for Labour beyond Starmer’s background. A pre-election survey for supportive NGO EachOther found ‘support for universal human rights appears to be high.’ However the assertion assessed: (‘to be effective, rights, laws and protections should apply equally to everyone’) was more a glib statement about formal equality before the law fixated on procedural justice but imposing no substantive obligations and overlooking those with additional needs. Support hence increased among men and correlated with income, education, age and proximity to wealthy southern England, illustrating demographic divides Labour must bridge to rebuild a winning coalition. These results were achieved despite laws infringing Convention rights being banned altogether in the Scotland Act and the devolution settlements for Wales and Northern Ireland. Nevertheless, any constitutional crisis would allow English nationalism to be weaponised against Labour to devastating effect.
Starmer’s liberal legalism
The political picture is complicated by the robust leftist critique of liberal legalism. Before the Human Rights Act came into force, Starmer literally wrote the book on it – a respected text approvingly cited in court. Reviewing the Act’s first year, he commended “judges who are truly committed to human rights jurisprudence” who “have dragged the others along.” Not everyone shares his enthusiasm. Salvador Santino F. Regilme Jr argues the dominant human rights discourse has arisen as: “the various branches of state power (executive, legislative, judiciary) have been systematically co-opted to rule in favor of oligarchic interests.” These interests manufacture consent among “the majority of the population in the system through concessions such as minimal forms of civil and political rights,” with no mention of social welfare, let alone material equality. The veneer of fairness provided by civil rights obscures the fact that: “oligarchs deploy their resources that repress the meaningful exercise of those rights,” ensuring a: “neoliberal rights consensus, whereby state power is dramatically undercut so as to empower individual political rights, private property rights, and unfettered capital accumulation.”
Moyn ably illustrates how the dominant human rights discourse ascended with the marginalization of socialist politics. The end result is as Regilme observes: “social democratic ideals and labor interests are substantially deemed as “unconstitutional” or discredited in the public sphere.” For example, EachOther contemplating an end to divisive, inequality-perpetuating private schools like it’s a bad thing. Regilme notes neoliberal rights discourse is therefore: “detrimental to those who do not have the initial advantages in life, particularly because of oppressive structures of identity recognition and distributive politics.” Therefore, Slavoj Žižek observes: “universal human rights are effectively the right of white male property owners to exchange freely on the market, exploit workers and women and exert political domination.” Ultimately, as Giles Deleuze put it: “Human rights will not make us bless capitalism.”
Many fundamental civil liberties (from privacy and family life to freedom of belief, expression, association, and assembly) are not absolute under the Convention, being subject to government interference in certain circumstances. The task of policing the boundaries of human rights falls to the courts and can be achieved in various ways, but liberal legalism has coalesced globally around the doctrine of proportionality. Proportionality analysis has its origins in 18th century Germany, where it was used to grant police sweeping powers to prevent conduct jeopardising public order – Bernhard Schlink found this included “offending the Prussian king at a Socialist rally” – and has since evolved into a three part test. Intrusions on freedom must be: prescribed by law; in pursuit of a legitimate aim (such as a given public or interest or protecting the rights of others); to an extent that is necessary in a democratic society. This approach contrasts with ‘lighter touch’ approaches, which limit scrutiny to the legality and rationality of administrative acts, and deontological perspectives such as American free speech absolutism under the First Amendment.
Stavros Tsakyrakis argued proportionality balancing undermines legal certainty, rendering constitutional rights futile and highlights its use to suppress leftist speech during the Cold War. Jeremy Waldron has criticised proportionality for necessarily relativizing unquantifiable values, including potential moral imperatives – a problem known as incommensurability. Tsakyrakis observes judges “try to bypass the moral arguments by masking their reasoning in neutral language” and such obfuscation “deprives society of a moral discourse that is indispensable.” Shades of proportionality reasoning have seemingly spilled over into wider political conversation in the form of ongoing ‘disparity discourse’ which at its worst resembles a “neoliberal math” where grave social injustice and inequality are tolerable to some if distributed proportionately.
The second key tenet of liberal legalism is what Ran Hirschl has called ‘judicialization of mega-politics’ – where important political decisions on public policy are increasingly outsourced to the courts. Historically courts were reluctant to intervene on such issues, attempting to maintain a distinction between policy and administration. The advent of liberal legalism has left courts increasingly embroiled in political questions. Aharon Bharak, one of the doctrine’s leading advocates, has argued: “nothing falls beyond the purview of judicial review; the world is filled with law; anything and everything is justiciable.” The UK has not gone quite this far, but similar notions have manifested themselves in cases assessing everything from the Scottish Government’s alcohol pricing and tobacco display laws to the aforementioned national security cases involving Starmer.
Further still, the courts have been involved in fundamental nation-building issues such as Brexit and implicitly, Scottish self-determination. Yet, as Hirschl observes: “it is ultimately unclear what makes courts an appropriate forum for deciding what are quandaries of a purely and substantively political nature.” Legal challenges to parliamentary legislation have often been initiated by powerful vested interests. Due to the systematic shredding of the social safety net, ever fewer people have ordinary access to informal advice, let alone legal aid or funds for litigation. Courts are a venue where equality of political participation is anything but guaranteed.
There are also broader concerns about efficacy and democratic legitimacy. Jeffrey Goldsworthy suggests the judicialization of politics is animated by the idea that: “a substantial number of influential members of the highly educated, professional, upper-middle-class have lost faith in the ability of their fellow citizens to form opinions about important matters of public policy in a sufficiently intelligent, well-informed, dispassionate, impartial, and carefully reasoned manner.” Hirschl argues these elites shielded their values from debate as relying on the ballot box proved too risky. An extreme example can be seen in the Fiscal Compact implemented between EU Member States but vetoed by the UK to liberal dismay – the treaty preserved austerity economics in constitutional amber just as the neoliberal order became discredited. Michael Klarman argues controversial cases: “raise the salience of an issue, they incite anger over ‘outside interference’ or ‘judicial activism,’’ and they alter the order in which social change would otherwise have occurred.” This restricts the scope for courts to act as progressive social forces, as Hirschl observes: ‘Courts hand down decisions that favor the powerless primarily when doing so is consistent with elite values and interests.’ Ultimately, judicial power has its limits, as Hirschl notes: ‘Recurrent manifestations of unsolicited judicial intervention in the political sphere in general and unwelcome judgments concerning contentious political issues in particular – have brought about significant political backlashes.’
Unreliable allies: lawyers and the left
Authoritarian leaders in a range of countries, including Turkey, Brazil and Poland have readily manufactured political capital by positioning their judicial branches as elitist patricians disconnected from society. In the UK, law school entry requirements target the top few percent of secondary students, who must also sit an entry exam. Alumni from private schools and a sliver of affluent comprehensives make up significant swathes of intakes. Internships and holiday placements are frequently prerequisites for entry into the profession, which requires a postgraduate degree and two years of on-the-job training. The median British voter is 50 years old and would have left school when under 20% of young people went to university – the liberal professional class is an unrepresentative elite that is heavily outnumbered. Meticulous drilling in precedent grounded in hegemonic values appears to generate risk-averse politicians, overly trusting in institutions and baffled by accelerating socioeconomic change. Not burdened by being a trailblazer, Starmer still shows these limitations – knowing what the rules are and understanding how society should be are entirely different skill sets.
Lawyers could be considered something of a labour aristocracy, working in a self-regulated industry relatively resistant to the offshoring, market forces and technological disruption that has seen work become increasingly intense, surveilled and precarious for so many. Many solicitors can expect to exceed the median salary soon after qualifying. Elite firms offer new graduates six-figure salaries. Heavily overrepresented in Parliament, the last election saw a new nadir – two privately-schooled, Oxford educated former Magic Circle lawyers competing to represent England’s most deprived town. Not only do legal professionals make their own rules, they uphold the law empowering them to do so. This privileged position cannot buy affection – lawyers rank among the least trusted of all professions.
Legal professionals’ class interests and cultural sensibilities are reflected in their political preferences. At ease with the free movement of capital and perhaps invested in explaining complex regulations to business, a poll for The Lawyerfound 57% of lawyers backed Remain ahead of the EU referendum. In the 2017 snap election, early enthusiasm for the Liberal Democrats gave way to plurality support for Theresa May, despite her authoritarian tenure as Home Secretary and threats of a no-deal Brexit. Lawyerly liberalism wilted with the spectre of a leftist Labour manifesto. After the election cost May her majority, pro-EU Tory rebels were lauded by liberals as they inflicted humiliating Parliamentary defeats on the government. A small group of Jolyons became prominent public commentators. Lawyers increasingly took the most hardline pro-European position – by March 2019, 52% supported revoking Article 50 and a plurality backed the short-lived Independent Group.
Remainer fervour running rampant among his middle class milieu, Starmer unsurprisingly agitated for Labour to commit to a second referendum. His professional peers again proved unreliable allies in last December’s election, 40% favouring the Liberal Democrats, who received 11.6% of the total vote. Faced with socialism or Boris’ barbarism, they simply shrugged their shoulders. This hardening of attitudes has been mirrored by the wider public. After contentious litigation over the Brexit process, an annual IPSOS Mori survey has found Britons’ net trust in judges has fallen 20% since 2015 and drops to just 65% among those without formal qualifications. Professionals were least trusted by working-class Baby Boomers in the north of England who voted Leave and disastrously deserted Labour in December.
Closing Arguments
Fighting right-wing populism, lawyerly liberals look like UFC fighter Conor McGregor boxing Floyd Mayweather – flailing ineffectually when the rules of the game change. Our current political climate shows norms are made to be broken, and Starmer’s fondness for procedural posturing leaves less room for bread and butter issues. His devotion to a rules-based order delivering for fewer and fewer people, and his underreported background, make him susceptible to coming conservative challenges. Progressives need to spend less time crying foul and focus on tackling their opponents head on. As Deleuze noted “Law isn’t created through declarations of human rights,” – it is made materially by the systemic decision making of judges, public bodies, corporations and private individuals.
The most sustainable way to protect the interests of ordinary people – from society’s margins to the median and beyond – is self-organising to secure political power. Things can only get better if enough people demand them to. Moyn correctly stresses that civil rights: “are not to blame for inequality, but we need to face our responsibility for treating them as a panacea.” While rights activists justly warn of the ‘‘tyranny of the majority,’ a pragmatic emancipatory politics must also be concerned with the “tyranny of merit.” To render civil liberties effective in practice, Regilme advocates unifying politically behind a ‘“social rights consensus’ – where issues of identity politics and oppression are traced back primarily, but not exclusively, to unjust material distribution,” expanding civil rights discourse into a universalist politics securing human dignity for all. As Deleuze put it: “That’s what being on the left is about. It’s creating the right.”
