Last week, the right earned a significant tactical victory in the fight against the emergence of two-tier justice in Britain. Earlier this year, the Sentencing Council, a product of the Coroners and Justice Act (2009), published new sentencing guidelines for judges that recommended the commissioning of a report for convictions of certain minorities before sentencing, recommending that judges factor in the background of convicts.
This was a product of the social justice attitude that the government and legal system should be used as means to redress “systemic inequality”. The belief goes that the “dominant” groups in society — in our case, white men — have used the same systems to oppress and control other groups, intentionally or otherwise, and so those systems should be in turn used to favour those oppressed groups. As a result, the proponents of such a move argue that this is simply justice, as it allows for historic injustices to be resolved.
Of course, to the more sceptical, it is not simply justice, but two-tier justice, undermining the principle of legal equality that has existed in Britain for centuries, which facilitated the emergence of a society of unusual tolerance as well as fairness.
That is why Robert Jenrick’s campaign to delay the implementation of these recommendations has been so important: it puts a stake in the ground and refuses to buy into the presumptions of the radical restructuring of the British state. Instead it defends the liberal tradition that justice should be blind, not the tool of anything.
Such a victory offers a chance for conservatives and the British right in general to seize and push for a wider constitutional revival, addressing the laws that facilitated not only the context for such a change to our sentencing rules, but the wider legal changes that undermine legal equality in Britain. The Sentencing Council is a particularly egregious example, as the Coroners and Justice Act is itself an attempt to resolve the deficiencies of the Criminal Justice Act (2003), which in turn was an attempt to resolve the problems aroused by Crime and Disorder Act (1998), all of which are themselves attempts to “modernise” the criminal justice system based on ideologically-driven governance, itself driven by social justice philosophy.
The opportunity is there. This could be a moment at which the tide turns, if the right is brave enough to take it.
But such an opportunity should come with a warning. Repealing legislation with new legislation to take its place is often a viable method of rectifying damaging alterations to governance, but not in the case of the fabric of the constitution. The damage is significant, and should be undone, but in Britain’s constitutional context this should not be done by replacing bad laws with equally bad laws. This is because our constitution is, historically, primarily a political constitution, not a legal one. Each form of constitutionalism is necessary, and the balance is essential, but Britain’s was one that favoured the former and not the latter.
Both forms of constitutionalism, as Richard Bellamy writes, recognise that there are deeply-held, but equally valid, belief systems in any public, and these will inevitably lead to conflict, especially where such deep beliefs conflict. Legal constitutionalism — which usually characterises the American political system — seeks to resolve this conflict through legal means presided over by impartial judges, addressing the privileging of one belief system over another by concretising that belief system in law. Political constitutionalism, on the other hand, says that the debates over the deeply-held beliefs of the public, and how they should guide governance, are settled through political mechanisms.
The foremost example is, naturally, elections, but the political constitutionalism that traditionally characterised the British constitution is more of a republican approach to public life. It asks citizens to be active participants in the deep debates over how public life should be ordered — and, importantly, how much it should be ordered.
In a legal constitution, the capacity to settle these debates does not rest with the public, and the inevitable disagreement within that public, but instead lies in the hands of unelected powers such as judges and the bodies that guide them. Lord Justice Jonathan Sumption has warned about the triumph of this approach to governance both before the pandemic and since, and his recent work The Challenges of Democracy is a deeply informative text on this issue.
But the tendency to resolve disagreement via law is not merely an obsession of the left: it has become an obsession of the right too. During the Conservative-led governments of the 2010s and 2020s, there were suggestions to repeal the Human Rights Act (1998) and, rather than allowing the inevitable debates over the claims that law had introduced to play out in public, replace the law with a Bill of Rights.
Debate cannot be settled by law. It must be a contest decided in the public realm, if at all
To do so would be to make the same mistake, attempting to constitutionalise in law a specific view of the good life. Conservatives may, for example, believe that “rights” belong in a specific context, but could be wrong; just as equally, the left may think that rights are informed by ineliminable identities, but could be wrong. Either way, that debate cannot be settled by law. It must be a contest decided in the public realm, if at all.
One such case study in which this tendency has severely backfired is in New Zealand. Prior to the 1990s, the constitution of New Zealand was practically the same as Britain’s — so much so that the Privy Council in London could still be appealed to from New Zealand — but the introduction of a Bill of Rights facilitated an increase in judicial activism and interpretation that, as Dr Oliver Hartwich has pointed out in NZ Initiative, resulted in the courts “determining” what climate change means in one case, and shows that the subsequently-created Supreme Court “has adopted a troublingly loose approach to interpreting laws passed by Parliament” and is “reshaping long-standing legal principles based on judges’ perceptions of changing social values.”
Jenrick’s victory shows that an organised, informed and determined resistance to this legalistic creep and judicial activism can be achieved — but this should now become a principled opposition to legalism, rather than a tactical victory and a strategic defeat. The constitutional revival of Great Britain can be achieved, if the British right is prepared to pursue it, but we must not become legal constitutionalists, even if it is tempting. To do so is to only make the situation worse.
