Shortly after becoming leader of the Conservative Party, Margaret Thatcher interrupted a policy discussion by banging onto the table a copy of Friedrich Hayek's The Constitution of Liberty. 'This is what we believe,' Thatcher said, in a tone inviting no argument.
It is hard to imagine Theresa May pulling a similar stunt today, and not just because of differering personalities. The Constitution of Lberty is where Hayek attempts to restate the principles of classical liberalism in the face of fashionable intellectual disparagement. A key target is the concept of redistributive justice, which he maintains is incompatible with the principles of an open society. Rather the government's role should be to facilitate market distributions by maintaining the rule of law. It has no business pursuing 'social justice'; a theme Hayek later develops in Law, Legislation and Liberty.
Judging by the programme of this week's Conservative Party conference, Hayek's ideas are no longer in vogue, much less mandatory. I counted several references to 'social justice' - not as Hayek's 'mirage', but as a normative outcome of policy. 'Burning injustice to social justice', was the title of one fringe event hosted by the Child Poverty Action Group.
Whether social justice is indeed a source of 'sloppy thinking and even intellectual dishonesty' is a matter for debate. But by conceding the argument, the Tories have handed the opposition a valuable weapon - the moral high ground as defender of rights, access to justice and the rule of law. When these are set out in terms of social rather than individual justice, the left will always outbid the right - especially when enjoying the luxury of opposition.
In access to justice, the left has been setting the agenda at least since the passing of the Legal Aid, Sentencing and Punishment of Offenders Act and especially since the devastating Supreme Court judgment on tribunal fees. Note that the Bach commission's inquiry on the right to justice was published by the Fabian Society. Just this week, Tony Blair's one-time lord chancellor Lord Falconer of Thoroton was able to depict the weakening of the legal system as a post-2010 phenomenon. This is a bit of a cheek, but there's no doubt that his argument was helped along by serial incompetencies under Conservative lord chancellors and the executive's grudging and sulky attitude to judicial setbacks. Certainly we are a long way from the 2010 Tory-led coalition whose first act was to scrap Labour's illiberal national identity cards.
How can the Tories reclaim the initiative? The Bach commission has plenty of good ideas - but as we have seen, the Tories will always be outbid. The irony is that the right should be the natural home for the rule of law, enabled by access to justice and an independent legal profession. Here are some ways the government could start getting the message across.
- Demonstrate a commitment to rights and liberties. An early start would be to row back on the government data-sharing powers created by the Digital Economy Act 2017 as well as the inexorable criminalisation of unpleasant electronic communications. On rights, if and when proposals for a 'British bill' resurface, make it plain that any such measure will be couched in terms of limits on state power. History has shown that negative expressions of liberty - 'Congress shall make no law...' - have a better declaration than ringing proclamations such as 'Citizens are guaranteed freedom of speech, of the press, of assembly, demonstration and association' (look that one up).
- Take account of the all-round business case for investment in access to justice, including free early advice. Where there is demonstrable pay-back, don't be afraid of spending.
- Be pragmatic about criminal justice. Justice must also be based on what works, which, as Bach points out, would mean locking up fewer people. Because this is party conference week, a word needs to be said about bringing back hanging. That word is no: even if cold-blooded lethal retribution were morally right, the practical difficulties and the consequence of making celebrity martyrs out of a handful of thugs and fantasists should be anathema to Conservative minds.
- Defend the principles of judicial and legal professional independence. Are ministers not a tiny bit ashamed that, when international bodies such as the International Bar Association classify states according to the government's role in legal regulation, the UK is listed among those where the government has (admittedly an arm's length) role?
The Times commented this week that the Conservatives are in a state of political exhaustion and ideological chaos. This is evident, not least from the prime minister's speech today. But amid the wreckage the government could at least behave in a way that demonstrates to voters a simple truth: that conservatism will always be a better guardian of the rule of law than socialism, for the simple pragmatic reason that capitalism depends on the rule of law where socialism will always place it second to the higher priority of redistributive 'social justice'.
Hayek understood this. Margaret Thatcher understood this. David Lidington surely does. Why is the message not getting across?