Let’s politicise all the lawyers
Politics wishes to have a legal existence
DAVID MCGROGAN
Conservative politicians excel in the art of complacency. And one of the things that they have been ‘intensely relaxed’ about for decades is the state of university law schools. For several generations conservatives of both big- and small-c varieties have gazed smugly upon British constitutional arrangements and said self-congratulatory things about the rule of law, Magna Carta, and the wonderful mysteries of convention. This has led them to overlook a decisive shift in approaches to public law, driven chiefly by university law schools, which the legal thinker Martin Loughlin identified in the early 1990s as one from conservative to liberal normativism. Put simply, conservatives have been living in the comfortable burrows of the past, as conservatives are often wont to do; they are just now beginning to emerge, blinking like moles in the sunlight, to confront a very different reality.
Still half-blinded by the brightness, they are dimly aware that law appears to have become ‘politicised’, but they do not have the conceptual tools to understand this. In their minds, lawyers and judges were until recently basically all good chaps. Then, a nasty man called Tony Blair came along and made things like the Human Rights Act 1998, the Constitutional Reform Act 2005, and the Equality Act 2010 (nobody ever remembers that the latter was actually a product of Gordon Brown’s premiership), and this forced the judiciary to become somehow poisoned against conservative priorities. The good chaps of yesteryear have gone away and something rather different has replaced them.
This is mostly a fairy tale. What conservative politicians are really nowadays half-perceiving is that it actually matters how lawyers are educated – mere pomposity about the wonders of the unwritten constitution is not in itself enough to magically turn undergraduates into good chaps – and that for decades law students have been educated in an essentially liberal-normative environment. And since, while not all law students become judges, all judges (give or take) were once law students, this means that the judiciary has become steadily characterised by liberal normativity across time. What does this mean?
Let’s frame the discussion with a brief analysis of the two recent decisions, of the High Court and then Court of Appeal, concerning the Bell Hotel in Epping and its use as a migrant hotel. For those not based in Britain, the Bell Hotel, like many other hotels throughout the country, has been used since spring 2025 to house asylum-seekers while they wait for their asylum applications to be processed, in accordance with Home Office policy. It became the focal point around which protests against this practice took place nationwide when an Ethiopian or Eritrean man (reports differ) who was living at the hotel and had only recently arrived in the country sexually assaulted a teenage girl in public. This was only one of three serious offences committed by residents at the hotel in the period April-August 2025; there was also in that timeframe an incidence of arson and another, separate, sexual assault.
The protests at the Bell became disruptive and the local authority, Epping Forest District Council, sought an injunction pursuant to s. 187B of the Town and Country Planning Act 1990 (‘the Act’) to have the Bell closed. Its reason for doing this is, of course, is that this would mean that the occupants would be rehoused elsewhere and the protests would no longer take place. But the technical justification is that the owners of the Bell Hotel, Somani Hotels, had made a ‘material change of use’ to the Bell in repurposing it from a hotel proper into asylum-seeker accommodation, and this mean that planning permission had been required from the local council pursuant to s. 57 (1) of the Act. Since Somani Hotels had not received planning permission from the Council when making the switch in the Bell’s usage, early in 2025, it had acted unlawfully. And s. 187B of the Act allows a council in such circumstances to claim injunctive relief as follows:
(1) Where a local planning authority consider it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction, they may apply to the court for an injunction…
(2) On an application under subsection (1) the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach.
It is important to make clear that this is still a live case. There are two issues that are yet to be finally determined by the High Court, and this will take place in mid-October 2025, when a full trial will take place. The first is that it is an open question whether the change in use from a hotel to asylum-seeker accommodation is actually a ‘material change of use’ for the purposes of s. 57 (1) of the Act. If it is not, then Somani Hotels needed no planning permission in the first place and everything else is moot. And the second is whether it is ‘appropriate’ to grant a permanent injunction preventing the hotel from being used to house asylum-seekers if indeed a ‘material’ change of use has been made.
This litigation is fraught with import, because the entire – absurd, but now entrenched – ‘migrant hotel’ policy rests on it being determined that if a hotel is repurposed as asylum-seeker accommodation it is not a ‘material’ change of use. If the court holds that it is, then the owners of every single migrant hotel up and down the land will find themselves in breach of planning law unless they have previously obtained planning permission from the local authority – which it seems likely they will not. That means that the government will be in serious political hot water, because it will have to either amend the Act or pass new legislation to keep the migrant hotel system going (a simply terrible outcome in terms of ‘optics’) or else house the approximately 30,000 asylum-seekers currently living in hotels elsewhere – not an easy task logistically and likely to be extremely unpopular.
We therefore await the outcome with much interest. But an important skirmish was fought in the two preliminary cases that I mentioned, owning to the fact that Epping Council had also requested as an interim measure that the High Court grant an injunction ordering the closure of the Bell until the full trial has taken place in October. The High Court granted this interim injunction in Epping Forest District Council v Somani Hotels Ltd [2025] EWHC 2183 (KB) at the start of August; the Court of Appeal then overturned this decision a few weeks later in Somani Hotels Ltd v Epping Forest District Council [2025] EWCA Civ 1134. As a result, the Bell remains ‘open’ for the time being. But in many ways the outcome is much less interesting than the substance of the judgments themselves.
The two cases make fascinating reading as a study in contrasts. This is chiefly because of the way the relevant provisions of the Act are worded – i.e. that the court ‘may grant such an injunction as [it] thinks appropriate’. The Act was no doubt drafted in this way so as to allow courts to respond with maximum flexibility to the many different scenarios which might arise in disputes over planning. But of course the downside of flexibility is that it foregrounds the fact that judicial decision-making is really always an exercise in discretion.
Now, the extent to which it is an exercise in discretion is an angels-dancing-on-pinheads debate in the course of which much scholarly ink has been spilled. I will come to that in a due course. But let me start by laying out the basic premise, with which I think most legal scholars would agree: the whole reason why litigation takes place is because both parties think they have strong cases and there is no readily apparent ‘right answer’. If there was a readily apparent ‘right answer’ there would be no need to litigate. And the judge’s job is never therefore to mechanistically ‘apply the law’ to achieve the ‘right answer’. The judge rather has to choose between two strong cases and decide which one wins.
This is always the case, but loose statutory language like ‘the court may grant such an injunction as [it] thinks appropriate’ throws it into relief, because of course it invites a situation in which the two parties make their pleas on the basis of different ideas about ‘appropriateness’, which the judge simply then has to decide he likes or doesn’t like. And in his judgment, he then has to dress this up as the outgrowth of ‘the law’ when it is really a decision rooted in whatever is deemed persuasive on the grounds of whether or not it would be more ‘appropriate’ in the circumstances. The judicial process, then, is less like what people imagine it to be (an august ceremony in which the law is applied to resolve a dispute) and more like an ad hoc adjudication through which arguments are hashed out and some purportedly wise person in a wig, a kind of popinjay King Solomon, declares one to be better than the other.
The literary theorist and legal scholar Stanley Fish makes all of this plain in his 1991 essay ‘The Law Wishes to Have a Formal Existence’. For Fish, litigation is really an act of rhetoric. ‘Law’, he tells us, ‘is not philosophical’, but ‘pragmatic’; it is a forum for argument not about abstract values but about how we negotiate our differences in the face of contingency. And litigation is therefore a ‘forum’ in which ‘battles are contingently and temporarily won’ – a kind of sanctioned and formalised procedure through which we figure out from moment to moment how to achieve a modus vivendi in spite of our differences. And since these differences, ‘if they were given full sway,’ would ‘prevent us from living together in what we are pleased to call civilization’, we should be grateful for the ‘amazing trick’ that law pulls on our behalf.
What is this ‘amazing trick’? Quite simply, it is the way in which law takes two rhetorical arguments, presented by claimant and defendant, and then dresses them up into an outcome in the form of a judgment that is itself pure rhetoric – all the while ‘effacing its own rhetoricity’ by presenting the outcome as the inexorable application of legal reasoning. It is a ‘dazzling’ sleight-of-hand, allowing us to delude ourselves into imagining that there is such a thing as ‘the law’ which exists beyond our ken and which the judge consults, like an oracle, when actually he is simply determining which of two arguments is more persuasive and then presenting his own decision as inevitable. And this is a necessary sleight-of-hand, a necessary delusion even, which we partake in because the alternatives are worse: either leaving everything to immutable religious doctrine or else anarchy.
Fish’s description of the judicial process is persuasive when we consider the two Bell Hotel decisions. In both, the outcome is dressed up in formality. But both are better understood as two acts in rhetoric which emphasise different, somewhat stylised, ‘facts’ in order to justify a particular preferred result. In the first decision, in the High Court, the judge, Eyre J, described himself as undertaking a ‘balancing exercise’ to weigh up whether to grant an interim injunction closing the Bell until mid-October. But he quickly then revealed the true nature of what he was doing when immediately making clear that ‘matters are to be seen in the round having regard to the purpose of the balancing exercise which is to minimise the risk of injustice being caused by the decision to grant or refuse interim relief’. That is to say, what is happening is not a ‘balancing exercise’, in which the arguments pro and con are weighed against each other to see which are heaviest, but rather a rhetorical justification for a particular vision of ‘justice’ being realised.
This led Eyre J to make note of particular factors. First was the ‘public interest in planning control’; it is important that the planning system not be undermined by developers, like Somani Hotels, simply changing the purpose of land willy-nilly. Second, relatedly, was the fact that Somani Hotels had deliberately chosen not to seek planning permission to change the purpose of the Bell, acting on advice not to do so from the Home Office itself, so as to avoid ‘public scrutiny and explanation’ and thereby the local democratic decision-making process. Third, Eyre J noted that in his view the Council’s contention that there had been a ‘material’ change of use was strong – in other words that he thought it likely the final outcome would be that Somani Hotels were in breach of planning requirements. And, fourth, he noted the ‘fear of crime resulting from the use of the Bell [to house asylum-seekers]’, the ‘need to address lawful protests’ causing noise and disruption, and ‘the consequences of the actions taken to address unlawful activity’ (meaning during the course of protest) were all ‘factors in support of interim relief’ due to the ‘effect on the amenity of local residents’.
Against this he weighed what he called the ‘public interest’ in accommodating destitute asylum-seekers, which the Home Secretary has a statutory duty to carry out. He also mentioned the disruption that would be caused to Bell residents if the hotel was closed, and the financial impact on Somani Hotels – the Bell had been loss-making for years and was it seems being largely propped up by its contract to house asylum-seekers. He also did allow that it was possible that the final outcome would be a finding of no breach of planning control, in which case an interm injunction would have caused unnecessary disruption.
But his conclusion was clear: ‘notwithstanding the particular importance’ of the duty of accommodating destitute asylum-seekers and the financial impact on Somani, ‘the force of the factors in favour’ of granting an interim injunction closing the hotel ‘is such that the risk of injustice is greater if that relief were to be refused.’ And hence he ordered the Bell Hotel to close to asylum-seekers until the final hearing.
In the second decision – in which Eyre J’s judgment was successfully appealed by Somani – the Court of Appeal chose rather different emphases. It took issue with many of Eyre J’s conclusions, and used remarkably forthright language in doing so (calling aspects of his judgment ‘very worrying’ – something which I have never come across in a judgment before). But it also told a rather different story.
Here, the important factors to take into account were the consequences of granting an interim injunction. On the one hand, in the Court of Appeal’s view, this would surely ‘encourag[e] further lawlessness’ by ‘acting as an impetus or incentive for further protests’ – people would, in other words, get the message that migrant hotels would be shut down by councils in the face of public demonstrations. And on the other, since asylum-seeker accommodation was a ‘national issue requiring a structured response’ it was important to take into account ‘capacity’ in the ‘system’; if one hotel closes, other housing must be found. That would have knock-on effects, and since other councils might follow Epping Forest’s example, those knock-on effects could be severe. The Court of Appeal also thought it important ‘to preserve the status quo’ as a virtue in itself since the trial was soon in the offing. In its view ‘the risk of injustice to the residents of the Bell’ by being dispursed to different acccommodation when the trial, determining the final outcome, would be heard in mid-October anyway, was such that it was surely better to sit tight and wait. Finally, it criticised Eyre J for failing to allow the Home Secretary to intervene, which she (which is to say, the Home Office) had asked for permission to do.
Two very different stories are thus being told here, and this is represented also in the way the judgments are framed. In Eyre J’s account, the Council, the appropriate decision-maker in such matters as the democratically accountable body in charge of planning control, had been circumvented by the hotel owner with the connivance of the Home Office, and this was forcing ‘the residents of Epping [to] bear the consequences’ until the enforcement process took its course. These consequences included the criminal activities of the occupants of the Bell itself, but also ‘violence and disorder’ caused by protestors coming from outside of the area to piggyback on protests of ‘local residents’ which were ‘lawful and peaceful’. And here a local Councillor’s own comments, cited by the judge, gave added flavour:
Based on my liaising with my constituents, residents have become increasingly fearful. Businesses on the high street tell me that they are suffering from reduced footfall. I have seen for myself a disruption to daily life, with road closures, noise and a persistent atmosphere of tension. The feedback I am recieving…is that the protests are making residents feel unsafe and are damaging the local economy.
But in the Court of Appeal’s account, a rather different picture emerges. Here, the issue is really that a perfectly sensible arrangement has been disrupted by agitators. Following the ‘incident’ on 8th July (that is, the then-alleged but now-proven sexual assault) there has been ‘protest activity’ at the Bell, which has grown as the Hotel ‘gained national prominence’. The result has been violence and chaos:
There have been marches on Epping High Street as well as counter protests. Violent and disorderly incidents connected with the protests are said to include the following: an assault on two security staff from the Hotel; a male shouting abuse outside the Hotel and drawing graffiti on its windows; and protesters using fireworks and throwing eggs. On 17 July, the protest was initially peaceful, but became disruptive subsequently some protesters threw projectiles at police officers and the Hotel, smashing police vans and vehicles and causing damage to the Hotel. Eight police officers were assaulted and suffered minor injuries. As of 3 August 2025, the police reported that 25 people had been arrested in connection with offences at these protests and 16 had been charged.
This has all ‘had a detrimental effect not only on those who live in Epping but also on the asylum seekers who are resident in the Hotel, many of whom are vulnerable and/or suffering from mental health issues.’ And the issue is thereby cast in an altogether different light – allowing the Court of Appeal to draw its conclusion that Eyre J’s judgment had given a green light for further such unlawful activities to try to force migrant hotel closures, made worse by the fact that he had failed to allow the Home Secretary herself to make submissions in light of her ‘pivotal constitutional role’ in considerations of ‘the public interest’.
This all would confirm Fish’s description of the judicial process as an exercise in story-telling far more than it is an exercise in applying the law. For Eyre J, the story is one of a commercial hotel operator working in cahoots with the Home Office to ride roughshod over the desires of local people in order to foist upon them a population of young, single, male asylum-seekers. For the Court of Appeal, the story is rather one of the Home Office taking a view on what is in the public interest (‘the UK’s compliance with international humanitarian and legal obligations’; the need ‘to avoid destitution among asylum-seekers’; the ‘security of the asylum estate nationally and locally’; etc.) and working sensibly with commercial operators to achieve that end, in the teeth of unreasonable and violent, and by implication illegitimate, public protest.
And the wider conclusion to be drawn is that judges are never simply mechanically applying the law, but are better to be understood as authors of stories – rhetorical actors who stitch together different narrative accounts of the facts offered by claimants and defendants in order to produce a tale of their own. The tale they produce has authority because it has on it the imprimatur of legal process. But it is still in the end an act of narrative creation, and one which is necessarily imbued with a certain viewpoint and certain values.
Another way of putting this (and I mentioned that I would be coming back to the subject of discretion) is that while judges always excercise discretion, they do so in a way which is bounded. Their discretion is not absolute, in this sense, but rather informed and constrained by particular values which judges themselves hold dear.
In this sense, it is almost too ‘on the nose’ to observe certain facts about the backgrounds of the judges. Bean LJ, one of the members of the Court of Appeal which decided Somani Hotels v Epping Forest District Council, is a longstanding member of the Labour Party, had formerly been Treasurer of the Society for Labour Lawyers, and was also formerly a chair of the Fabian Society. He was also, perhaps more importantly, a founding member of Matrix Chambers, the fashionable London chambers closely associated with championing human rights causes. The implication of bias in his reading of the situation in Epping regarding the Bell Hotel is obvious, and this was widely reported at the time in the right-leaning press. What was not so widely reported is that Eyre J, who gave the judgment in the High Court, was a Conservative Party councillor for years who stood on several occasions as a Conservative Party candidate to be an MP, and was previously Chancellor in the (Anglican) Diocese of Coventry – all facts which, if squinted at a certain way, could suggest biases of their own.
But drawing attention to the background of judges and making vague innuendos is easy; the important point here is really that the most significant thing is how judges (and by extension law students) have been educated since at least the 1970s. And this is what brings us to the subject of conservative and liberal normativism.
In his highly influential 1992 book Public Law and Political Theory, the legal scholar Martin Loughlin describes public law thinking in Britain as being a mixture of two distinct ‘styles’, which he calls normative and functionalist. The functionalist style, which he associates most strongly with a particular strand of thinking developed at the London School of Economics during the 20th century, sees law as simply a tool to issue commands to achieve outcomes – the constitution, as JAG Griffith put it in the 1970s, is just ‘what happens’. But this tends to be a minority view. Mainstream thinking is dominated rather by normativism: the idea that law is supposed to constrain decision-makers in the light of some set of principles or other.
Prior to the 1970s, Loughlin argues, the common approach was that of conservative normativism. Here, to simplify, the constitution can be thought of as a set of norms which arise, mysteriously and pragmatically, from the British, and particularly the English, national experience. Without having been consciously willed, these norms spring forth from something which thinkers from an earlier era labelled the ‘ancient constitution’ – a settlement rooted in a set of ideas about what it was, or was not, legitimate for a ruler or government to do that had persisted since before the Norman Conquest. These suggested an instinct in the English nation towards something which Michael Oakeshott called ‘civil association’ – an awareness that the task of the ruler is to maintain a system of law that responds to contingency while creating a framework of stability within which individuals are able to pursue their own ends. It is (to use Oakeshott’s own term) a kind of ‘grammar’ which arisen almost in the same way as a language, and which governs how people go about achieving their aims without specifying what those aims should be.
Since the 1970s, however, and especially with the emergence on the scene of the figure of the legal philosopher Ronald Dworkin, there has been a shift in normativism towards a highly rationalistic liberal understanding of constitutional arrangements. Here, constitutional norms do not arise from a particular national experience but rather are based on underlying principles which are available to human reason. These principles gesture towards what Dworkin saw as the central ‘truth’ governing institutional affairs in the West – that the task of politics is to achieve a situation in which ‘equal concern and respect’ is available to everyone. And this in turn means that in every legal dispute there is a – wait for it – ‘sense of appropriateness’ that can and should guide the judge towards the outcome which best realises that central imperative of equality.
Dworkin himself drew fire from all quarters across the field of legal scholarship (not least from Stanley Fish) but his way of describing the law seemed to capture the zeitgeist in the latter quarter of the 20th century – it is no exaggeration to say that almost all teaching that goes on in law schools in Britain, insofar as they impart a philosophy of law, implicitly impart the kind of liberal normativism that he espoused. The point of law is to constrain political decision-making based on principle, and principle derives from the ultimate liberal imperative of ‘equal concern and respect’ for all. And this derives not from the ‘ancient constitution’ or Christianity or the national experience or tradition or any mumbo-jumbo of that sort, but rather from reason: the implicit cod-Rawlsianism of the contemporary liberal who is thoroughly convinced that ‘equal concern and respect’ is the only logical outcome of politics conducted rationally.
And the result of this is that the judiciary in 2025 is thoroughly imbued with this species of liberal normativism, since the average High Court judge, let’s say aged 60 or so, will have graduated and completed training at the bar in the early 1980s. And the trend will only become more pronounced as time goes by, since the trend towards liberal normativism has itself only grown stronger in the decades since. This, not incidentally, explains much about the New Labour settlement; aforesaid nasty man, Tony Blair, was himself a barrister, as were many of the other New Labour figures, and liberal normativism – the idea that law should channel political decision-making towards equal concern and respect – was writ large across the New Labour project. But the problem is much more deep-seated than that, and represents the results of decades upon decades of legal education directed in a certain way.
This means, to come back to discretion, that when judges exercise that discretion – when, if you like, they engage in their acts of Fishian story-telling – they generally do so in a way that is bounded by the liberal normative ideals which they have imbibed. This is not always the case, of course, as Eyre J demonstrated in his decision in Epping Forest District Council v Somani Hotels, but it is increasingly so. Judges exercise their discretion not on the basis of an elucidation of what is thought to be normative in light of tradition, the national character, or ancient ideas about what is just for the ruler to do (let alone Christian morality) but rather rationalistically, derived from a sense that what is appropriate in order to realise a particular vision of equality.
Hence, when push came to shove, what was felt to really matter in the dispute over the Bell Hotel, what was emphasised and highlighted in the story told by the Court of Appeal in its judgment, was the basic illegitimacy in the court’s view of public protest in such affairs. The use of ‘migrant hotels’ is basically good, because it is basically good that asylum-seekers are able to come and settle in the UK by whatever means necessary, because all human beings are entitled to equal concern and respect – regardless of where they come from, or the circumstances in which they arrive. Protest about ‘migrant hotels’ then is to be discouraged, and certainly not encouraged by being seen to reward that kind of behaviour through closing such hotels in response. And the Home Office is acting entirely legitimately in advising commercial operators to avoid making planning applications, because of course the ‘public interest’ definitionally points towards equal concern and respect rather than the petty concerns of the petit bourgeoisie in places like Epping.
What is visible in the Bell Hotel decisions is then simply a microcosm of what can be seen across UK courts and tribunals as liberal normativism continues to tighten its grip on the imaginations of the judiciary. But it is something against which, until now at any rate, conservative politicians have been not only powerless to respond, but powerless to understand. This is because for decades they have shown themselves completely unwilling to think seriously and deeply about what is happening in the world around them – with law being no exception. They have imagined that law is simply a neutral set of rules which judges apply. And they have also, implicitly, imagined that the judiciary is innately and inherently conservative, at least with a small ‘c’. Neither of these things is true: law in a modern state is political and reflects political values, and the judiciary, university-educated like all the professions in the UK these days, is with a few exceptions liberal to its core.
What then is to be done as electoral politics shifts rightward? A future Reform or Conservative (don’t laugh) government is going to have to grapple with liberal normative hegemony – not just in the short term, but with an eye to shaping the contours of judicial thought in future decades. I am entirely unconvinced that anyone on the right of politics is thinking seriously about this issue, or is even aware that it exists – and this bodes ill for the success of whatever projects such a government might have in mind. The lesson of the Bell Hotel decisions – and the lesson of law in general, as Fish ably argued – is that when push comes to shove it is the values which judges hold dear that really matter. And it is at the level of values where conservative politicians are at their weakest and most inept.
This article (Let’s politicise all the lawyers) was created and published by News from Uncibal and is republished here under “Fair Use”
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