affiliated to the International Association of Constitutional Law
The popularity of Jeremy Corbyn in the Labour leadership election raises intriguing constitutional questions. Irrespective of whether Corbyn becomes leader, what would be the impact on our system of governance of a shift to the left in the Labour Party? If there were an attempt at a new progressive era of 1906 or 1945 scale on the part of a future Labour administration, what would become of the constitution?
Often, legal scholars look at constitutional questions issue by issue. But it may sometimes be valuable to consider them as part of an overarching political settlement. Since 1979 that settlement has been a neoliberal one. Constitutional changes have predominantly been driven by the need to move the country in a capitalist direction and – crucially – to keep it there for the future, irrespective of changes in party or popular sentiment. The rights of corporations must at all costs be elevated above the rights of the electorate.
By “neoliberalism”, I do not mean the grand design-for-life concocted by Friedrich A. von Hayek and largely discredited by the state activism of the financial crisis and its aftermath. The more compelling interpretation is put forward by David Harvey in A Brief History of Neoliberalism which sees neoliberalism as a political project designed to ensure the restoration of economic elites. This reading has been vindicated by our succession of governments which have been intensely relaxed about people becoming filthy rich and filthy poor. As Harvey points out, Hayekian neoliberal principle is constantly abandoned when class interest beckons: we do have a planned economy, and the plan is to make the rich super-rich. By attempting to change this state of affairs a Corbynite Labour administration would have profound implications for the constitution’s development.
First, a more left-wing Labour Party would have implications for the unity of Britain. It would undermine the narrative that the Scots are largely social democrat and the English are largely neoliberal. This narrative – which always seemed racist to me – has loomed large in the momentum towards an independent Scotland. If it were to be discredited by a leftwards shift in Labour, this would serve to curb that momentum.
Secondly, a leftwards move would affect the referendum on continued membership of the European Union. Corbyn is the only candidate for Labour leader not to support Labour’s participation in a “Yes” campaign, believing that much needs changing in the EU. This scepticism may be galvanised by the endless suffering in Greece and the other poorer Eurozone Member States (suffering ignored by the SNP’s “social democrats” in their born-again enthusiasm for the EU). The electorates of these countries are not allowed, so it seems, to opt for democratic socialist solutions. Yet even outside the Eurozone it is difficult to see how democratic socialist policies can be implemented in Britain whilst remaining in the EU. In the British context, where widespread privatisation preceded EU liberalisation, the effect of EU law has been a constitutional entrenchment of the privatisation already undertaken. EU provisions on public undertakings and competition law mean that Member States no longer have the power to reserve certain activities to their public sectors. Article 106 TFEU, as judicially interpreted, means that the EU has abandoned agnosticism as to the forms of economic organisation in favour of a more strident bias in favour of private enterprise. This neoliberal turn has been reinforced by the Council’s series of liberalisation directives which a British government alone would be powerless to overturn (e.g. Directives 2003/55/EC, 2003/54/EC, 2008/6/EC). EU provisions on public procurement (Directives 2004/18/EC and 2004/17/EC) and state aids (Article 107 TFEU) also make it difficult to shift the economy in favour of Britain’s have-nots. For similar reasons, there may be greater scepticism of and even disengagement from other economic supranationalisms which give pride of place to the interests of transnational corporations, such as the World Trade Organisation system, and potentially the TTIP.
Thirdly, a more socialist Labour Party might reverse the trend towards elected Mayors in local government, and favour systems which involve decision-making by multi-member bodies and their grassroots parties, rather than a concentration of power in the hands of one individual.
Fourthly, it is unclear what implications a leftwards shift would have on the Human Rights Act and human rights generally. Unlike earlier generations of socialists, Corbyn is a supporter of the ECHR and its Court. It remains to be seen what would happen if the super-rich were to use the Court to defend “the peaceful enjoyment of their possessions”. The Labour left is mainly unaware of the way in which the Court has over time developed the property right in Article 1 of the ECHR’s First Protocol so as to consolidate existing patterns of property ownership. Neoliberal political rule has meant that the “one per cent” has never needed to explore Article 1’s untapped potential.
Finally there will be constitutional implications within the Labour Party itself. Since the late 1980s and certainly the 1990s, the party constitution has been changed time and again to guarantee the monopoly of policy-making power on the part of the leadership. A more progressive Labour Party leadership might want to share power with party members in a more genuine fashion. Public lawyers have rarely regarded the party rulebooks as part of their bailiwick. But in view of their importance in terms of who becomes Prime Minister and where power lies, it is time that they were added to the constitutional material which forms the subject of scholarly analysis.
Danny Nicol is Professor of Public Law at the University of Westminster
(Suggested citation: D. Nicol, ‘Constitutional Implications of Jeremy Corbyn’ UK Const. L. Blog (29th Jul 2015) (available at https://ukconstitutionallaw.org/))