Neoliberalism and the Accumulation of Ghost Laws
Critical Legal Thinking
Readers will be familiar with a certain argument for neoliberal government. By the end of the 1970s, we were told, welfare states had grown out of control. Politicians promised to reduce the state and give people control over their lives. Government after government has promised bonfires of workplace or environmental or European laws. Yet under governments from Thatcher’s to Johnson’s, the shrinking of the state never occurred. In every area of the law, there are more rules now than there were 50 years ago, and the laws are more complicated and harder to understand. Legal philosophers have a name for this continuous expansion and deepening of the law: “juridification”. Other writers have blamed juridification on the legal capture of areas which were outside the law (eg information law), or politicians’ desire to create both new markers and rules to govern them (eg laws regarding privatised utilities), or the passage of more authoritarian rules (eg in immigration law). All of these are part of the story, but something less obvious has taken place as well: the way in which parliament brings laws to an end has changed. Prior to 1979, this was typically through the passing of a statute and the repeal of another.
Under neoliberalism rights rarely disappear in one go. Sometimes governments leave a right on paper, but chip away at the mechanisms for enforcement, so that a particular right continues to exist but only the wealthiest of individuals can apply it. On other occasions, rights continue to exist but that rather than applying to a whole group they continue to apply only to those who have held an interest for the longest, while new entrants to housing or the workplace are given fewer protections. Rights exist in theory, often in a proliferation of different statuses, except that the numbers of people who can enforce the best of them shrinks from millions to thousands to no-one. When rights reach that final condition, dead for all purposes save continuing on paper, they are truly “ghost law”. Here, I will give two examples of ghost law: the collapse of private sector rent control, and the impact of legal aid cuts in 2013. I will show each employed a very different path to the old model of repeal and replacing statutes. The article will end by asking what the rise of ghost law tells us about neoliberalism as a form of politics.
Rent control: from everybody to no-one
The transformation of housing law in 1980s Britain was the product of two linked moves. One was the creation of a new entitlement for council tenants to purchase their own homes (“right to buy”). Councils could not replace sold-off homes. Tax breaks such as Mortgage Interest Relief, and a Wear and Tear Allowance protected professional landlords. Homes were privatised, and tenants forced to live in ever-more-expensive housing. The 1980s also saw the destruction of what had been a 70-year history of rent control, which had reached its peak with the Rent Act 1965, under which when landlords and tenants disagreed as to the appropriate rent to be paid either could refer the rent to a rent officer. The officers were (in effect) a tribunal, with a Committee to hear any appeal.
Since the passage of the Housing Act 1988, private sector tenants have held their property for a fixed term (most often, six months). On the conclusion of their tenancy, they are entitled to just two months’ notice that they are required to leave, after which a landlord can apply to the courts for an eviction order under the “accelerated procedure”. The landlord does not need to give a reason for the eviction and is entitled to a possession order as of right. In principle, a landlord still cannot raise the rent except by means of a notice in a prescribed form. But because the term of the tenancy is short and the tenant has no right to stay in the premises, the tenant faces a constant threat of eviction. Landlords can increase rent whenever the tenant signs a new tenancy. If they object, the landlord can evict them.
The removal of this protection did not take the form of the repeal of older laws. The previous system of rent officers and rent assessment committees continued to exist. Except that now they served to protect just a small and fast-shrinking minority of pre-1988 tenants. Between 1988 and 2000, the proportion of all UK tenancies which were subject to rent control fell from 60 percent to 6 percent, and the number has shrunk further since then. Some 200 “fair rent” cases are still heard every year in the Lower Tribunal, but this is a ghost number compared to the several million households who had rent protection 30 years ago.
Attacks on legal aid and laws which no-one can enforce
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”) treated civil legal aid to an even more extensive process of destruction. For legal aid was not quite a right, but rather a way to enforce obligations in the sphere of welfare benefits, immigrations, employment, family and housing law. Every right that pre-existed the Act (such as the rights of family spouses to apply for leave to remain in the UK, or the right of a separated parents contact with their child, or the right of tenants to seek compensation for disrepair in their home) remained on the statute book after the Act was passed, in theory with the same effect as before. What LASPO removed was the means for anyone to enforce legal rights
Under LASPO, divorce, contact and residence cases, could no longer be brought on legal aid. All employment law cases, save for employment-related discrimination, were taken out of the scope of legal aid. LASPO removed legal aid for almost all welfare benefits cases. This was most destructive in housing law, for example, where a tenant was facing eviction because of poverty, caused by benefits issues: a housing solicitor was prevented from using their time to write to the benefits authorities and point out any error in their decision.
The attack on legal aid, just like the removal of rent control, did not simplify the law. After the Legal Aid, Sentencing and Punishment of Offenders Act 2012, there were just as many laws on the statute book as there had been before. What was removed was the best and easiest device for hundreds of thousands of people living in poverty to enforce their rights. The effect of the Act was to exclude in one measure most people who had enjoyed the protection of legal aid. Between 2009-10 and 2016-18, the number of new civil cases started under legal aid collapsed from 933,815 a year to 146,618, a fall of 84 percent. As a result of LASPO, half of all legal advice centres in England and Wales closed between 2013 and 2019.
Neoliberalism and the pre-1979 legal order compared
This approach, of leaving rights in place but creating new classes of people without any means of enforcing them, has become a recurring feature of law-making since 1980. Think of the Coalition’s introduction of fees for employment tribunals or Boris Johnson’s present attack on judicial review. Faced with the option of destroying rights altogether, or leaving them on the stature book, neoliberal governments have preferred the latter. It stands in marked contrast to what had been considered good law-making before. Prior to 1979, when politicians changed the law, the approach they took was to introduce one law after another with the new law repealing the older one. So, the history of factory legislation is that Acts were passed in 1833, 1844 and 1867, then consolidated into a single Factories and Workshops Act 1878, after which came a Factory and Workshop Act 1901, and further Factories Acts in 1937 and 1961.
The right to strike was enshrined in the Trade Disputes Act 1906, then restricted by the Trade Disputes and Trade Unions Act 1927 and permitted once more by the passage of the Trade Disputes and Trade Unions Act 1946, before being restricted once again under the Industrial Relations Act 1971. The published versions of the 1906, 1927 and 1946 statutes printed by Her Majesty’s Stationery Office ran to just 10 pages altogether. Moreover, since the 1946 Act repealed the 1927 Act, their cumulative weight in terms of adding to the substance and complexity of the law, was in effect nothing. These reforms were intended to augment, or diminish the class power of millions of workers; Conservative and Labour government achieved a significant shift in the balance of forces through laws shorter than a pamphlet. Since 1979, politicians have not wanted to be seen to take a way a right in its entirety. They have permitted the old laws to remain, albeit protecting fewer people every year.
The strategic caution of the neoliberal pioneers
This dynamic should encourage us to reconsider what we mean when we speak of the hegemony achieved by neoliberalism. Forty years after Margaret Thatcher’s first election victory most people, when polled, still said that the minimum wage was too low, that unions are essential to protecting workers’ interest and should have more power not less, that welfare benefits should be increased, and that wealth should be taxed to help the poorest. The most committed of neoliberal politicians have sought to entrench their chosen policies over a timescale of decades. Dragging politics to the right, against the wishes of most voters, has required strategic management, the manipulation of opportunity when it has arisen, and the disciplining of the few parties who have stood up to the consensus.
The most familiar example of this caution is the plan drawn up by a Conservative working party in the aftermath of the collapse Industrial Relations Act 1971. Unofficial strikes by printers and dockers had made large parts of the Act unenforceable. Then, when Edward Heath called a general election demanding a popular mandate to attack the miners, under the slogan, “Who governs?”, the electorate answered: not you. The Conservatives’ reflection on that defeat was drafted in 1977. It was the work of Nicholas Ridley, a tycoon who had inherited 10,000 acres of pit villages and farmland in Northumberland. He proposed the fragmentation of nationalised industries without a “frontal attack”, and suggested that on entering government Conservatives should legislate to prevent welfare benefits from being paid to striking workers, as the prelude to what would have to be a period of open struggle between the government and the strongest of the unions.
In 1982, Margaret Thatcher wrote to her mentor the neoliberal economist Friedrich Hayek. He had returned from a visit to Chile and wanted the British politician to agree to model her government on Pinochet’s dictatorship. The Prime Minister replied, accepting that the government in Santiago was “a striking example of economic reform from which we can learn many lessons”. She insisted however that Western neoliberalism must set its own pace. In Britain, politicians could not govern without consent: “[S]ome of the measures adopted in Chile are quite unacceptable. Our reform must be in line with our traditions and our Constitution. At times, the process may seem painfully slow. But I am certain we shall achieve our reforms in our own way and in our own time. Then they will endure.”
It is this militant pragmatism which explains why politicians in a later moment sought to shrink legal aid rather than abolish housing law or cut legal aid rather than repealing all the laws which could not be enforced without it. In a system where elections are still contested and where politicians cannot be seen to swim too fast against the tide of public opinion, the neoliberal victory is not complete. If only we had politicians on the left who looked at the state with the same clarity of vision and rather than disciplining their own followers were willing to fight the battle for social transformation, year after year.
David Renton is a campaigner and barrister. This piece is an extract from his latest book, Against the Law: Why Justice Requires Fewer Laws and a Smaller State, which is published by Repeater in July.