This article is taken from the July 2024 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issues for just £10.

As I write this, Sir Keir Starmer is on the cusp of becoming prime minister. The first lawyer of any note to be PM since H. H. Asquith KC more than a century ago, his views on legal and constitutional issues are naturally of some interest.

This is not least because, as a young radical lawyer, Starmer, once the secretary of the Haldane Society of Socialist Lawyers, held views which are decidedly out of favour in today’s Labour Party. Take human rights. In an 1995 editorial for the Haldane Society’s journal, he began by rubbishing the idea that there was such a thing as universal and inalienable human rights.

By the time the Conservatives crawl back into power — if they ever do — they will simply shrug and accept the Starmerite constitution

He then called the European Convention on Human Rights “almost redundant” in the struggle for socialism, endorsing Karl Marx’s critique of social change through appeals to abstract principles as “verbal rubbish”. For good measure, he ended the piece with a call to overthrow the common law rules protecting private property rights.

This is a far cry from the professional politician who, two decades later, used his maiden speech in the House of Commons to “affirm the principle that human rights apply to everyone equally”. Or the Starmer who, in a lecture at UCL the following year, sang the praises of the liberal human rights project he once dismissed as an un-socialist inversion of political reality.

What had changed? A key factor was the behaviour of British judges. Like many radicals of his generation, Starmer distrusted the judiciary, seeing it as a bastion of right-wing undemocratic Telegraph readers. In his words, “there is little dispute among socialists that the present judicial system needs changing”. The whole approach was summed up by the headline of one of his articles: “Would You Vote for Denning?”

Three years after the enactment of the Human Rights Act, to which he had given the most lukewarm of endorsements, he had revised his judgment. Judges “have done pretty well … Of course, there are judges who are truly committed to human rights jurisprudence, and they have dragged the others along.”

The HRA, according to Starmer, should not be understood as “a ‘letter of the law’ piece of legislation” but as the ushering in of a fundamental “cultural change” within the legal system. And since the judges had proven unexpectedly receptive to the expansion in their powers, he could dismiss his earlier qualms about their political unreliability. 

Hence, when the judiciary was dragged into controversy during Brexit, Starmer could present himself as a defender of the judges against their Conservative foes.

If Starmer has learned to love the judges, his views about Britain’s political constitution have remained consistent since his radical days. In the 1990s, he attacked parliamentary sovereignty as making “the protection of basic rights impossible”, conveniently ignoring the country’s historical record in upholding human rights. Meanwhile, constitutional conventions were, in his view, an “increasingly hollow currency”.

Once in Parliament, Starmer pursued this line of thought, proposed a constitutional convention to codify the constitution and a law to require a legal case to be made out before any military intervention could go ahead (as the website LabourList noted, Starmer opposed the Iraq War not because he thought it was wrong but because there was no UN Security Council resolution authorising it). 

During his leadership campaign, he went further, promising proportional representation, maximalist devolution (except for England, which would only have regional devolution), and the creation of a federal second chamber.

Of course, this was then; and if he will indeed command one of the biggest parliamentary majorities of the modern era, as seems not improbable, the temptation to implement any of the above will be close to nil. The Brown review into the constitution which Starmer commissioned has already been effectively buried, despite Starmer’s explicit endorsement. 

Labour’s manifesto contains nothing more radical than giving the vote to teenagers and some tweaks to the Lords — bad policies, but far less radical than what he had previously promised.

Instead, the most radical elements of Labour’s legal agenda may be found elsewhere, in the form of a promised enactment of the Equality Act’s socio-economic duty, as well as in the promise of a Race Equality Act, both of which will inevitably substantially increase the incidence of judicial review in all areas of government activity. 

A proposed mega-regulator for standards in public life is also likely to intensify the quangofication of British political life.

Opposition within Labour to these plans is likely to be limited. The political constitutionalists in the party, who understood that the government of the United Kingdom could not be subcontracted out, are by and large gone, having been replaced by a generation whose ethos has been shaped by the Blairite constitutional settlement. 

And if history is any indication, by the time the Conservatives crawl back into power — if they ever do — they will simply shrug and accept the Starmerite constitution as another fait accompli. Such are the cadences of British political life.