In a recent post on this site ‘Judicial Power and the Left: A Short Response’ Professor Phil Syrpis welcomes the publication of Judicial Power and the Left whilst disagreeing with its general thrust. He judges it ‘far better [for the Left] to embrace a more legal, and more international, constitutionalism…to achieve lasting social change’. This post seeks to take issue with some of his arguments.

Central to Professor Syrpis’ thesis is the importance of risks, which he accuses the Left contributors to Judicial Power and the Left of belittling. He argues that we place too much emphasis on opportunities for the Left of a more political constitution: we don’t put enough emphasis on the risks. He insists that ‘hard-won victories for the Left are, more than ever, vulnerable’. Yet to warn of the danger of ‘risk’ presupposes the existence of something to risk. It assumes we live in a basically nice society in which there is much which deserves to be preserved. It also assumes that the supranational regimes – EU, ECHR, WTO and so forth – seek to preserve what’s worth keeping in our society. From a Left perspective both these assumptions are in my view erroneous.

In this regard Professor Syrpis’ interpretation of the evolution of British society is complacent. In reality, from the left perspective that informed much of Judicial Power and the Left, we inhabit a neoliberal state created in stages since Mrs Thatcher’s coming to power in 1979. The New Labour governments of 1997-2010 supercharged Thatcherism rather than discarding it, and the forward march of neoliberalism was strengthened rather than undermined by the banking crisis of 2008. Yet Professor Syrpis somehow perceives the continued existence of substantial Left ‘gains’ in our society. These gains, he insists, are in peril of being overturned should unadulterated parliamentary sovereignty and national legislative autonomy come to the fore.

Like most academic lawyers Professor Syrpis’ analysis is essentially liberal: he does not lay emphasis on the capitalist character of our society nor on its class nature. In this abstract world, the preservation of formal legal rights is accorded the first importance but tends to be isolated from the social and economic context. The analysis neglects material conditions, particularly those of working class people. Another problem with Professor Syrpis’ analysis is that he cripples it from the outset by pronouncing that he chooses not to enter into the debate on what the Left is. This reluctance to define one’s terms seems rather a cover for the acceptance of capitalism. After all, both Tony Benn and Tony Blair would claim to be on the Left and to be democratic socialists, yet one sought to replace capitalism and the other sought to strengthen it. For all his coyness it seems likely that when Professor Syrpis speaks of ‘the Left’ he means little more than the ‘Guardianista’ middle classes and their social liberalism.

Nowhere does Professor Syrpis offer an explanation of why ‘Leave’ won the day. In my view the decisive and unanticipated factor in the tight result was the seething discontent of a segment of working class voters who perceived the poll as their one and only opportunity to protest against the ruling elite. Yet far from engaging with their dissatisfaction Professor Syrpis treats us to a fulsome dose of complacency.  To be sure, Professor Syrpis’ argument about ‘risks’ parrots the Jeremy Corbyn/TUC refrain that withdrawal from the EU will mean a ‘bonfire of workers’ rights’. Yet in terms of most people’s lived experience these rights are for most people insubstantial or inapplicable. Professor Mary Davis has recently shown how vaunted EU rights like those under the Working Time Directive are in reality illusory, since employers can pressurise workers to opt out of them. Or else like gender discrimination law they were part of British law anyway predating the EEC provisions.

The bigger picture moreover is that adherence to the EU or EEA seals off any escape route from a permanently neoliberal, privatised economy in which workers’ bargaining power is minimal. Thus workers are presently suffering the longest wage squeeze in modern British history with wages going down 4% in real terms in the last decade. Privatisation, outsourcing, the creation of the gig economy, zero-hours contracts, withdrawal of pension schemes, governmental cultivation of debt in the form of student indebtedness and sky-high housing costs, have all contributed to widespread wage-slavery. This has been reinforced by a systematic callousness towards benefits well depicted in I, Daniel Blake. Gender and race discrimination abound regardless of what’s on the statute book. Forty-five years of EC/EU membership has not prevented these changes and has fostered and consolidated some of them through an unlimited labour supply (i.e. free movement of persons) and supranational enforcement of privatisation (e.g. via the liberalisation directives). So much for the Left ‘gains’ which Professor Syrpis is so concerned to preserve. Against this backdrop it is small wonder that Jeremy Corbyn’s and Frances O’Grady’s ‘Project Fear’ fared no better than George Osborne’s.

For good measure Professor Syrpis repeats the old yarn that we can always change the EU if we want. ‘The Left can and should argue for changes… The Treaties…have been changed a number of times…” He even insists that ‘the core of the EU project, the single market, is contested’. Really? Does that mean we can repeal the Four Freedoms? Not unless there’s common accord of the Member States! Or might we repeal the liberalisation directives, which enforce privatisation of vital public services? Not unless there’s unanimity on the Council! In other words socialistic change would require a complete absence of neoliberal governments throughout the EU Member States. It is ironic that those who argue for legal constitutionalism seem quite happy to ignore the difficulties of legal requirements when it suits them. Far from our more legal, more supranational constitution guaranteeing ‘lasting social change’ as per Professor Syrpis, it actually exists to reinforce and exacerbate a socially-unjust status quo.

From a left perspective, this is hardly surprising given that much of the substance of supranational arrangements is concocted by the transnational corporations and the super rich. Many leftists are happy to accept this reality in the context of treaties like MAI, TTIP, CETA, NAFTA, WTO and so on. They then go into denial over whether the same could possibly be the case with the EU. As Anna Freud observed in The Ego and the Mechanisms of Defence, when one chooses delusional gratification, one severs oneself entirely from the outside world. Evidence that the European single market was substantially the design of giant corporations has been proffered by Sandholtz and Zysman. But such unpleasant realities can be swept under the carpet. And if one is also in denial over class, what does it matter anyway?

Let us, however, face unpleasant reality. For middle class professionals such as university professors the EU is indeed a place of endless opportunity. By contrast the working class have born the brunt of the consequences of the unlimited labour supply and enforced privatisation of state services. Professor Syrpis’ piece does not engage with how, whilst the European single market has served the capitalist class and the upper-middle professional classes well, it has steadily reduced Britain to a financialised economy, with low wages, low skills and next to no rights for the majority of the British population. Indeed when Professor Syrpis concludes his piece by predicting ‘years of economic and social harm’ outside the EU, he little seems to realise that years of economic and social harm are exactly what the working class has been suffering for at least the last four decades.

Danny Nicol is Professor of Public Law at the University of Westminster