Politics is a brutal business. One day it is all red boxes, Newsnight, and Yes Minister. The next, no one recognises you. This may seem an odd time to consider the position of the Labour party, particularly as we gear up for a major debate on the future of legal aid with government ministers. Nevertheless, Labour could be but a coalition bustup away from returning to office. In any event, we need an effective opposition.

Opposition is more difficult than government. You don’t have adequate research resources. The easiest thing is just to oppose and whinge without advancing any positive position. Opposition is even more difficult just after you have left government. Witness just how cagey someone like Ed Balls is at the moment. In office, he was confident and combative. As shadow home secretary you would barely know he was there. His views on the counter-terrorism review were unclear for days on end. Mr Balls holds the office where Tony Blair made his name and from which his soundbites began to establish his ambition.

Remember the heady days of resounding nonsense like ‘tough on crime and tough on the causes of crime’? How the empty ambiguity of such phrases helped to establish Labour as sounder than the Tories on criminal justice? But where does Mr Balls take Labour now? Is he proud of the slew of criminal justice legislation that overwhelmed us over more than a decade? Does he recant on asbos?

He has certainly taken his time to come out with a line on 40 days pre-charge detention in terrorism cases, formerly the high ground on which stood Labour’s praetorian guard.

The point is not personal; it is structural. Take Sadiq Khan, shadow justice secretary. Nick Green bestrode the Today programme with the bar’s comments on the green paper. The Law Society got coverage for its attack on the biggest legal cuts ever made. What did the official Opposition have to say? Not much, Mr Khan himself would have to admit. The Press Association quoted him as remarking that the proposals were ‘among the most important published by the government to date’, and acknowledging that the budget had grown to levels that were ‘not sustainable’. Thanks, Sadiq. The Daily Mail was one of the few papers to find his comments worthy of publication. The Mail’s Harry Phibbs reported, not unfairly in the circumstances: ‘The Labour response was typically feeble and confused … Sadiq Khan said he accepted spending was "not sustainable" but then asked "in what areas does the lord chancellor intend to expand the provision of legal aid?"’

Labour needs to get a grip. The coalition is taking sides and making decisions. Where does Labour want to position itself and what does it want to say? Even the most fanatical Tory or Liberal Democrat will acknowledge that their party in government will perform better for having an effective opposition. Hubris is a universal failing of all those in power; the coalition seems to have got it a bit earlier than usual. Labour, then in office for nearly a decade, needed effective opposition to reduce the initial outrage that greeted its Legislative and Regulatory Reform Bill. The coalition needs a similar kicking over the monstrosity that is the Public Bodies Bill. Both of these proposed the arrogation of power to ministers that should have been left to parliament. It is a truth, all too universally acknowledged, that those in government never plan for the moment of their departure; never realise that they may, one day, be in opposition and internalise that, in the words of Dylan’s anthem: ‘Those who have been first will later be last.’ All power corrupts.

At a tumultuous party conference, Ed Miliband snatched the reins of victory from his brother. To Labour members, his main attraction may, oddly enough, have been his relative distance from government. His speech showed promise. He signalled a new approach to civil liberties: I won’t let the Tories or the Liberals take ownership of the British tradition of liberty. I want our party to reclaim that liberty… we must always remember that British liberties were hard fought and hard won over hundreds of years … too often we seemed casual with them.

He specifically distanced himself from the totemic call for 90 days pre-charge detention which had so engaged Tony Blair and Gordon Brown. At the joint fringe meeting that Justice held with the Society of Labour Lawyers, Jack Straw, with somewhat surprising candour, admitted that he too agreed that the government had been wrong to argue for 90 days pre-trial detention; to have promoted the Prevention of Terrorism Act 2005 (which introduced control orders) with undue haste through parliament; and to have failed to see how stop and search powers granted to deal with anti-terrorism were being used so widely. Given the political prominence of these issues at the time, those admissions are startling. They prepare the way for a fundamental reappraisal of policy.

Labour surely lost the last election because, at least in part, a narrative that it wanted to be about the enabling state became a story about the authoritarian state. That allowed the coalition parties to portray themselves as to the left of Labour on civil liberties. Labour was vulnerable to being painted as after control for control’s sake. The legal profession, politically a pretty diverse body, now needs Labour to do one thing well. Get down and dirty into the detail of policy. Examine proposals properly. Scrutinise their impact particularly on those who have the least power in society. Develop principles. Demand that ministers defend their ideas. Remember that you are not in power now and you may never be again unless you do this job properly.

Roger Smith is director of the law reform and human rights organisation Justice