The Constitution of Social Democracy: Essays in Honour of Keith Ewing

Description

This book is based upon the papers written by a group of leading international scholars on the ‘constitution of social democracy’, delivered at a conference to celebrate Professor Keith Ewing’s scholarly legacy in labour law, constitutional law, human rights and the law of democracy. The chapters explore the development of social democracy and democratic socialism in theory and political practice from a variety of comparative, legal and disciplinary perspectives. These developments have occurred against a backdrop of fragmenting ‘traditional’ political parties, declining collective bargaining, concerns about ‘juristocracy’ and the displacement of popular sovereignty, the emergence of populist political movements, austerity, and fundamental questions about the future of the European project. With this context in mind, the chapters in this collection consider whether legal norms can and should contribute to the constitution of social democracy. This collection could not be more timely in addressing these fundamental constitutional questions at the intersection of law, democracy and political economy. Preface Editors’ Preface Table of Contents List of Contributors PART I: JUDICIAL PROTECTION OF RIGHTS IN THE SOCIAL DEMOCRATIC CONSTITUTION 1. Reflections on Judicial Power and Human Rights I. The Character of Judicial Review II. The Impact of the Human Rights Act III. Why are Judges Thought to be Inappropriate? IV. The Judicial Approach to Balance; the Doctrine of Proportionality V. Conclusions 2. Courting Trouble. The Role of the Courts in Contemporary Democracy I. The Spectre of Juristocracy II. The Constitution of Social Democracy III. Brexit IV. Conclusion 3. Conflicts of Rights and Constitutional Balance I. Conflicts of Rights II. The Neutral Constitution III. The Unbalanced Constitution IV. Balancing the Constitution 4. The Human Rights Act and Labour Law at 20 I. ECHR/HRA II. Integrated Approach to the Interpretation of Civil and Political Rights III. Structure of Convention Rights IV. Collective Labour Law V. Human Rights Instrumentalism PART II: PARLIAMENT IN THE SOCIAL DEMOCRATIC CONSTITUTION 5. Parliamentary Sovereignty and Constitutional Futures I. Parliamentary Sovereignty as an Instrument for Democratic Political Change II. What is a Radical Constitution for the UK? III. Conclusion: Parliamentary Sovereignty in a Radical Constitution 6. Parliament, Sovereignty and the Paradox of the Political Constitution I. Introduction II. The Demand for Ship Money III. ‘A Controversy Like No Other’ IV. Parliament’s Privado V. The People Out of Doors: Ship Money Re-visited VI. Jus Populi and The Lost Treasure VII. Conclusion 7. Enhancing Parliamentary Democracy: The European Court of Human Rights’ Scrutiny of National Parliaments’ Exercise of Disciplinary and Internal Order Powers I. Parliamentary Exercise of Disciplinary Powers Over Non-members II. Parliamentary Exercise of Physical Force on Non-members III. Parliamentary Exercise of Disciplinary Powers Over Members IV. Conclusions 8. Employment Status in the Social Democratic Constitution: Law and Politics I. Social Democracy and Employment Status: The Curious Incident of the Dog in the Night-time II. An Introduction to Agonistic Politics: How to Think Politically about Employment Status III. Historical Perspectives on Employment Status: From Law to Politics IV. An Introduction to Select Committees on Employment Status: The Case of Homeworkers V. Select Committees and the Gig Economy: From Politics Back to Law VI. Concluding Thoughts: Select Committees in the Social Democratic Constitution PART III: DEMOCRACY IN THE SOCIAL DEMOCRATIC CONSTITUTION 9. The Law of Electoral Democracy: Theory and Purpose I. Electoral Law: Its Scope and Intellectual History II. A Social Democratic Electoral Law? III. Political Finance: A Search for Norms IV. Purpose as Function V. In Conclusion 10. Political Finance and the Constitution of Social Democracy I. Political Finance and Social Democracy II. Professor Ewing’s Contribution III. The Union-Labour Link IV. The Role of Interest Groups V. The Legal Regulation of Trade Unions VI. The Role of Political Parties VII. The Future of the Social Democratic Constitution 11. The Abolition of Class Government I. What is Social Democracy? II. Old-school Backsliding III. Modern-day Backsliding IV. Articulating the Abolition of Class Government V. Democratic Integrity must be Entrenched PART IV: SOCIAL JUSTICE IN THE SOCIAL DEMOCRATIC CONSTITUTION 12. The Liberal Socialist Tradition in UK Labour Law I. Introduction II. Ewing, the State and Industrial Relations III. Kahn-Freund, the State and Industrial Relations IV. Conclusion 13. Protecting Vulnerable Workers, Fairness and State Intervention I. Social Justice Purpose of Labour Law II. Determining Minimum Standards – The Origins and Development of the Protective System in Australia III. The Shift Towards a Focus on Enterprise Bargaining IV. The Chilling Effect of Changes in the Political Winds V. The Revolutionary Work Choices Legislation – Individualism to the Fore with Diminished Job Security VI. Fair Work Act – The Return to Fairness and Protecting Vulnerable Employees and the Move Away from Individualism VII. Challenges to Achieving Social Justice VIII. Shifting Minimum Standards to Parliament – The Political Realm? IX. Concluding Comments 14. There is Power in a Union? Revisiting Trade Union Functions in 2019 I. The Service Function II. Re-shaping the Representative Function III. The Continuing Eclipse of the Regulatory Function IV. The Governmental and Public Administration Functions V. Conclusions 15. The Irrepressible Common Law: The Economic Torts and the Right to Strike I. Introduction II. A Historical Perspective III. Restatement and the Supreme Court IV. The Resilience of Conspiracy V. The Wider Context VI. The Evolution of Economic Duress VII. Statutory Constraints: A Johnson v Unisys Dividend? VIII. The Future IX. Conclusions 16. Corporatism and its Discontents: Pluralism, Anti-Pluralism and Anglo-American Industrial Relations, c. 1930–1970 I. Introduction II. Corporatist Pluralism in Depression and War III. Post-War Pluralism: Collective Bargaining as Industrial Democracy IV. For and Against Industrial Democracy V. Neo-Liberalism as Anti-Pluralism VI. Conclusion 17. What is the UK’s True Constitution? I. Introduction II. What Does ‘Constitutional’ Law Mean? III. What Does the Evidence Say about Our Constitution? IV. Conclusion PART V: FRONTIERS OF THE SOCIAL DEMOCRATIC CONSTITUTION 18. Constituting Social Democracy and the Challenge of National Isolation I. Introduction II. Social Democracy and the EU – Keith Ewing’s Developing Perspective III. Brexit, the EU, and the Pathology of Social Democracy IV. Postscript 19. The Narrowing Constitution: European Constitutionalisms, the Social Market Economy, and the Principle of Accommodation I. Introduction II. The ‘Neutral Constitution’ Revisited III. The European Economic Constitution from Rome to Lisbon IV. The Crisis, Austerity, and the Narrowing National Constitutions V. The Labour Constitution within the ‘Narrowing Constitution’ VI. Contestation, Coexistence, and Reversibility VII. The ‘Social Market Economy’ and the Principle of Accommodation VIII. Conclusions – The Principle of Accommodation in a Democratic Europe 20. Equality and Community for Migrant Workers I. Introduction II. Equality for Migrant Workers III. The Principle of Community IV. Conclusion 21. Democratic Socialism, Citizenship and Migration: The Progressive’s Dilemma? I. Introduction II. Democratic Socialism III. Migration and the Challenge for Democratic Socialism IV. Charting the Labour Party’s Stance on Labour Migration V. Democratic Socialism and the Dimensions of Citizenship VI. Conclusion 22. State Surveillance and Social Democracy: Lessons after the Investigatory Powers Act 2016 I. Introduction II. State Surveillance, Civil Liberties & Social Democracy III. The Investigatory Powers Act 2016 IV. Some Implications for Social Democrats V. (The Impossibility of) Conclusion 23. Just Transitions for Workers: When Climate Change Met Labour Justice I. Introduction II. An Uneasy Relationship – Social Democracy and Environmentalism III. Just Transitions: A Conspectus IV. Just Transitions for Workers: An Emerging Framework V. Conclusion PART VI: AFTERWORD 24. Interview of Professor Keith Ewing by Lord Hendy Qc on 13 September 2018 Index