Law in a time of austerity and anger

by Joseph Markus

Now is a time when thousands of voters—mostly young, though undoubtedly there are some old—feel as though the world of organised politics has nothing for them.

In recent weeks we have moved from one crisis of faith to another. First, the Government, in the face of a (largely) recalcitrant House of Lords and the majority of the medical profession, pushed the NHS reforms into law. Having withheld publication of the risk register for those reforms (and following the leak of an earlier version of the risk register) the suspicion is now that the Government misled us, that the reforms are driven more by ideology than a concern for the health of our National Health Service.

Second, and most interestingly, there was George Galloway’s victory in the West Bradford by-election. The press isn’t quite sure what to make of it. Commentators don’t really agree either on its significance for Labour, the Tories or for UK politics more generally. Maybe, as Harriet Harman stressed in the morning following Mr. Galloway’s victory, it is simply too early to tell. Perhaps.

But in his victory an accepted theme has been the nature of his campaigning. His campaign was targeted to the specific features of the West Bradford constituency; he addressed the concerns and interests of young Muslims in that area. This is not something that any of the main Westminster parties did. Rafael Behr, writing in the New Statesman, picked up on this, but he doesn’t take the idea any further. Disaffection with modern politics, with party politics, and with the Westminster bubble, is a powerful force. Having a little bit of choice, for once, is a heady thing.

Elections are the most obvious places in which that disaffection can express itself. Yet a view of ‘governance’ that sees the extent of a citizen’s involvement only in episodic voting seems somewhat limiting.

Of course, there is another avenue for the marginalised and voiceless to seek to affect politics. The law provides a largely untapped and potentially immensely fruitful political resource (and, as  always, an important safeguard to illiberal politicians). Over the past year the number of judicial review actions targeting certain of the Government’s cuts and closures has increased (many have taken aim at library closures, but the Fawcett Society also sought to challenge the 2010 Spending Review). One of those challenges recently announced—by Downhills School in Haringey—targets Michael Gove’s policy of forcibly converting schools to academies. Many have failed (and will fail), but some have succeeded.

One of the more public examples is the judicial review of the Government’s decision to increase tuition fees, brought by two former sixth-form students. While relief was denied in the High Court, the arguments used in that case can provide a working model of how it is that law can be used to secure a greater role for disaffected groups, passed over by Westminster, in an otherwise emaciated conception of governance.

Human rights featured prominently in the applicants’ arguments. More particularly, the applicants used, as an interpretive aid, Article 13 of the International Covenant on Economic, Social and Cultural Rights, entering into force for the UK on 20 May 1976, on the right to education. These sorts of rights—socio-economic—are characterised more by their plasticity than by anything else and they tend to impinge directly on areas of policy and life that, in a previous era, might have been thought to be reserved for Parliament. However, we are bound by case-law descending from the European Court of Human Rights to consider (binding international) treaties in the assessment of what a particular right under that Convention entails. This is something that activists and lawyers should make greater use of. In fact it’s significant that the Article 13 point was brushed off by Lord Justice Elias in the tuition fees review in a not-entirely-well-reasoned manner.

The ‘judicialisation’ of human rights—not always and necessarily a strictly legal concept—has opened up new paths for interested parties to challenge and change policy. Much success has followed from using civil-political rights, such as the Belmarsh Prison case heard in the House of Lords. We have not really tested how far socio-economic rights can be found within the language of the ECHR and neither have we tested how far our courts might be amenable to this type of argument. It is likely that the conservative instinct of the judiciary will kick in but, in any case, it seems like an argument worth having.

If Westminster and Whitehall want to escape this sort of legal barrage (which admittedly might not be a healthy or useful way to ‘do’ politics), well the easy answer is just to listen more carefully.

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