In 1919, Max Weber gave a lecture pointing out the tendency for democratic parties to become dominated by lawyers. For Weber, lawyers-as-politicians are managerial rather than visionary, rhetorically ‘logical’ rather than barnstorming, and, as David Renton argues in his upcoming book Against The Law, the dominance of law over politics has a degrading effect on attempts to change the world. 100 years after Weber’s lecture, a Corbyn-led Labour Party lost the 2019 general election, and Keir Starmer QC’s lawyerly new management took over after winning the leadership in a landslide.
It’s always lazy, however, just to point out the rhythms of history. Everything happens in its own context. Starmer is not simply the heir to the countless lawyers who have taken an active role in state management since the French Revolution, but his particular politics have developed in an era of ‘lawfare’. We live in a highly juridified society, which has seen an increasing tendency for all types of people and organisations—capital, special interest groups, and political progressives—to try to achieve change through the courts. For the Left, this strategy is misguided.
Emblematic of ‘progressive lawfare’ is the Good Law Project, a serial public interest litigator started by former Ed Miliband adviser Jolyon Maugham QC. Their most recent case, challenging the government’s appointment of Dido Harding, was particularly unedifying. The Good Law Project lost entirely, although another claimant partly succeeded, which meant that Maugham and the government could both claim victory. As a political intervention, and as a legal tactic, the whole thing was a waste of time.
The bigger problem with groups like the Good Law Project is not their losses but their wins. The state does not like being challenged in court, and with the increasing frequency of highly political cases (for example the Brexit litigation, the attempts to privately prosecute Boris Johnson, and the Labour Party clogging up the court system), the government is looking to reform the law to restrict the effectiveness of legal challenges. There are indications that the courts, too, are increasingly reluctant to hear the sorts of policy-heavy lawsuits that we’ve become used to seeing. In other words: by frustrating the state in court, these groups are actually encouraging the government to take away the tools of political lawfare.
But even if those tools were safe, lawfare would still be a bad tactic for the Left. It’s no secret that litigation tends to be a hindrance to most forms of progressive politics. The Conservatives’ project of moving from a system of collective labour dispute resolution (through the trade unions) to a regime of individual legal claims (through the tribunal system) was conscientiously designed to keep a lid on working-class power. Going further back, one of the reasons that the Labour Party exists in the first place was the need to force political change, through representation in Parliament, as a response to capital’s anti-strike victories in the courts. Historically, our opponents have been much more successful at persuading the courts that the law is on their side.
This sort of anti-left litigation continues to succeed today. In 2019, Royal Mail defeated a CWU strike on an outrageous technicality, despite ninety-seven percent support on a seventy-six percent turnout. Just last month, Great Ormond Street Hospital won an anti-picketing injunction against its striking cleaners. Landlords are reviving an old tactic of bringing defamation claims against housing campaigners. Capital has the home ground advantage in the courts, which makes it all the more confusing why some on the left keep trying to litigate their cause.
We cannot, as some people seem to think, litigate a way around the Brexit referendum. Nor can we hold back the tide of a successful general election manifesto through court orders. Bringing legal claims against government policy is bad lawyering, and it’s bad politics. Even where they succeed, legal and bureaucratic fixes tend to take aim at the procedure, rather than the underlying problems in society. And crucially, successful public interest litigation can result in the government simply changing the law, snatching away legal victories by regularising what the courts have found to be unlawful. The ‘Third Direction’ litigation again secret surveillance leading to the ‘Spy Cops’ Act is a good example of this.
The transfer of political fights into the ‘technical’ and ‘independently overseen’ arena of the courtroom changes the rules, forces us to think and strategise in different ways, and the terrain doesn’t always suit our strengths or our aims. For example, one of the first major decisions that Starmer took as leader was to settle a defamation claim even though the party had been advised that it could win. My instinct as a lawyer was that this was this was a perfectly good decision. Any litigator worth their salt is risk-averse, and very conscious of the stress, costs, and indignity of a mud-slinging trial. But my response as a member was that it was an outrage to pay the claimants off out of (dwindling) membership dues. The very fact that the party was in litigation forced it to consider legally sensible options, rather than politically astute ones.
So what explains the rise of progressive lawfare? It seems to have built up a head of steam over the last ten or fifteen years, and both the timing and the nature of the claims suggest that it was a reaction to political circumstances. Its rise also coincided with a period of severely limited ambitions in left-wing politics. The austerity regime imposed previously unthinkable cuts and punitive policies (the two-child rule, the bedroom tax, prohibitive employment tribunal fees), and a number of successful legal challenges were brought. In other words, things began to get so bad under the Tories that we had to try to rely on the Supreme Court to (sometimes, broadly) keep the austerity policies in check. This confused some lawyers into seeing the courts as allies, rather than natural conservatives, as the accepted wisdom had always held. Lawyering itself became a means of doing politics.
This is still the case, and appeals to the law are very often a wasted opportunity. Last year’s Employment Tribunal claim against Priti Patel for bullying, for instance, might have been an important flashpoint if, instead of being brought as a legal challenge, there had been a concerted political campaign bringing together migrants, trade unionists, and their allies (although the inclusion of senior Home Office managers probably tortures the definition of ‘trade unionists’). But what was sought was a determination of the complex question of whether Patel had behaved unlawfully, rather than a protest against her obviously reprehensible conduct.
In fact the Supreme Court itself, in a sneering aside against public interest litigation last year, made quite an astute point that lawfare tends to speak to a failure of political intervention. Criticising the formidable Child Poverty Action Group, the court said that policy challenges against benefits rules ‘are usually brought by campaigning organisations which lobbied unsuccessfully against the measure when it was being considered in Parliament, and then act as solicitors for persons affected by the legislation, or otherwise support legal challenges brought in their names, as a means of continuing their campaign’. Lawfare only really happens where proper politics has already failed.
This is not an argument against engaging with the law at all. Sometimes we have no choice, and there are excellent lawyers who work with campaigns and activists to push the boundaries and secure important victories. The problem is with those who see lawyering as an adequate replacement for politics. There are people whose entire political project is to try to win by gaining the state’s approval, rather than seeking broader change. They try to extend or formalise our legal rights as an end in itself, rather than seriously challenging the way that society works.
Starmer made his name in the ‘McLibel’ litigation, succeeding against the government in the European Court of Human Rights. McLibel—a mammoth defamation claim brought by McDonalds against animal rights activists—was a progenitor of the intimidating ‘SLAPP’ cases that the government is suddenly concerned about (now that it has ended its friendship with Russian wealth). But what Starmer’s McLibel win achieved was a sort of legitimation of the entire rotten system of libel law by smoothing its roughest edges and helping it to operate slightly more equitably. While its effect on the particular defendants was obviously crucial, there’s very little that’s transformative in this sort of approach. And it’s interesting to note the similarities between this and Starmer’s ‘we’ll fix it in committee’ approach to legislation like the ‘state crimes’ bills.
Lawyers of Starmer and Maugham’s generation also lived through a golden age of legal aid provision. The law centre movement had been a radical project, bringing free legal assistance into the hearts of communities, but at the same time it gave a whole cadre of lawyers a convenient sense that they could do something politically useful while also being highly paid professionals. For barristers in particular, using lawfare as a tactic both earned them a handsome wage and kept them away from the grubby processes of organising. But there is no shortcut to achieving actual political transformation. Victory will not come in the courtroom.
When we see a political problem, our instinct must not be to file a claim form. Even important legal wins will be short-lived if the government changes the law in response. We’re never going to be as effective in the courts as strike-breaking bosses or well-resourced defamation claimants. While there’s a place for political lawyering, it’s never going to change the world by itself.