The Terms of Reference for the Warman Review appear to have been written by an intern at the Cabinet Office. On their first day in the job. But that doesn’t matter because, thanks to an interview that the Prime Minister gave to the Daily Fail on Friday, we already know that the Review will conclude that working from home involves far too much making coffee and walking slowly to the fridge to hack off a piece of Beaufort d’été, and everyone should just get back to the office.
Meanwhile, some family rights groups are doing what ineffectual BEIS officials want them to do: provide some cover for ineffectual BEIS ministers by bigging up the possibility of Government-backed Private Members’ Bills designed to deliver some of the Government’s abandoned policy pledges ahead of the PMB ballot later this week (a possible ‘strategy’ first flagged by The Times on 2 May, and by yours truly on this blog).
Of course, the Employment Bill’s omission from the Queen’s Speech on 10 May does not mean that ministers cannot introduce the Bill – or one or more mini-Employment Bills – in this parliamentary session. Governments routinely introduce new legislation that wasn’t mentioned in the previous Queen’s Speech. But with three other (sizeable) Bills in the new legislative programme, it does seem unlikely that BEIS ministers will find the time and energy to surprise us before a general election in 2023.
In any case, the principal obstacle to progress on the outstanding promises on workers’ rights is not the Government’s lack of parliamentary time but – as Women & Equalities Committee chair Caroline Nokes MP noted on Friday – its “lack of will or care to foster a fairer and more equal society”.
Whatever, in the House of Commons on Thursday – during the Fairness at Work-themed debate on the Queen’s Speech – equalities minister Kemi Badenoch insisted both that the Government doesn’t need to have the Employment Bill that it has repeatedly promised, and that the Government is still committed to having the repeatedly promised Employment Bill that it doesn’t need.
Twice in recent months on this blog – in February and in April – I have had a pop at Jolyon Maugham QC and his midlife crisis plaything, the Good Law Project.
But I am bad. Because I mocked Jolyon without knowing the full extent of the good work that he has done [Shurely ‘the actual amount of money he has raised from idiots’? Ed]. So, I want to make amends. I want to live my values. To be a good person. Like Jolyon.
Yes, Jolyon has been even busier than I thought. In fact, he’s been so busy that it is probably helpful to break down his frenetic activity into three phases.
We can call the first of these phases The Golden Years, when Jolyon was single-handedly battling Brexit on behalf of the 99.99% of the population who don’t own a windmill, and have never clubbed a fox to death in their garden while wearing their wife’s silk kimono. During these glory years (2017-19), Jolyon or his Good Law Project raked in more than £1 million from 15 Crowdjustice crowdfunders, and won a few times in court, even if the Brexit-related court wins made absolutely no difference in the end. As you may have noticed, the Article 50 notification never came close to being revoked, and the UK left the EU in January 2020, despite Jolyon overturning the dastardly prorogation of Parliament by Dominic Cummings.
Then we come to what we might call the Manic Covid Era of 2020-21, during which Jolyon seems to have launched a new crowdfunder every time he opened a newspaper and read something he didn’t like. I had thought that there were 16 crowdfunders launched during this era, but in fact there were 29 – more than one a month. However, in two cases the Good Law Project abandoned the threatened judicial review so quickly that it never drew down the few donations pledged (£14,646 and £23,005 respectively). So, there were 27 crowdfunders from which the Good Law Project received donations.
Unfortunately, as noted in my previous posts in February and in April, this era was not quite so golden for Jolyon and the Good Law Project. Indeed, what most people would regard as ‘success’ has been somewhat elusive. And the 11 crowdfunders that I only learnt about yesterday don’t make the picture any prettier.
Yes, that’s £3.1 million, and not a lot of green. Furthermore, as I noted on this blog in February, those two High Court declarations are of questionable value. (And yes, in the Cronyism case, co-claimants the Runnymede Trust were granted a third, near-meaningless declaration that the appointment process had not complied with the Public Sector Equality Duty. However, as I noted in February, the judges ruled that “the [cronyism] claim brought by the Good Law Project fails in its entirety.”)
Most of the eleven 2020/21 crowdfunders that I somehow managed to miss originally are closed, but four remain open, including one about the awarding of contracts for PPE that has raised £68,277 since its launch in November 2020, but which has not been updated since February 2021 [Update: this crowdfunder was closed on 23 May 2022, seemingly without anything having been achieved], and one about the Government’s Net Zero strategy, in which there is a High Court hearing scheduled for 8-9 June. And then there’s the case – Bunzl Healthcare – in which the Good Law Project is currently seeking a costs cap and cheerfully admits that “[we] are on the hook for a vast sum if we don’t get one”.
In six of these eleven crowdfunders, the judicial review claim was abandoned or withdrawn by the Good Law Project without anything significant having been achieved. In two cases – one claim challenging Operation Moonshot and one about a Covid public inquiry – the claim was abandoned after a refusal of permission by the High Court. These six crowdfunders raised a total of £306,008.
And finally we come to 2022. So far this year, Jolyon and the Good Law Project have launched only two new crowdfunders. The Manic Covid Era does seem to be over. And this may be because Jolyon has decided that the judges all have it in for him. Such infamy.
In short, since 2017, Jolyon and the Good Law Project have raised a grand total of £4,211,325 from 44 Crowdjustice crowdfunders.
NB: In addition to the money raised by the 44 crowdfunders, the Good Law Project receives substantial sums in regular and one-off direct donations. According to its annual report for 2019/20 – the latest available – as of January 2020 the GLP had some 1,900 regular donors, and in the 12 months to 31 January 2020 it received £222,000 in such direct donations. And, according to the accounts and financial statements filed with Companies House in April 2021, in the 12 months to 31 January 2021 the GLP received £1.136 million in such direct donations, and another £225,504 in grants. Just today, a GLP tweet indicates that the GLP now has “thousands” of monthly donors.
[Update, 27 May: The GLP has just published its annual report for 2020/21, and this confirms that, as of January 2021, the GLP had almost 13,000 regular donors. In the 12 months to 31 January 2021, at least 22,452 people made a recurring or one-off donation direct to the GLP. The average monthly donation was £8.77, and the average one-off donation was £31.00.]
[Update, 27 May: Just hours after (quietly) publishing its annual report for 2020/21, the GLP has – with a little more fanfare – published its annual report for 2021/22. This confirms that, as of January 2022, the GLP had 28,500 regular donors. And, in the 12 months to 31 January 2022, the GLP received a stonking £4.216 million in regular and one-off direct donations, plus another £327,000 in “grants and high-value donations”.]
So, that’s an income of more than £10 million since 2017. To achieve what, exactly?
Now that Boris Johnson has put his lockdown-busting partying behind him and just wants to “get on with delivering”, perhaps he and his Government will use next week’s Queen’s Speech to finally start delivering on some of their many outstanding promises to enhance workers’ rights.
We’ve known for some weeks that the Queen’s Speech is unlikely to include the repeatedly promised ‘Big Bus’ Employment Bill but, as noted previously on this blog, that doesn’t necessarily preclude there being one or more smaller legislative vehicles delivering some of these outstanding policy pledges. Because, as the following chart shows, some of these policy pledges have been outstanding for some considerable time.
In November 2017, then BEIS minister Margot James promised the Women & Equalities Committee of MPs that BEIS would complete an evaluation of the Shared Parental Leave scheme – introduced in 2015 and already known to be failing – in 2018. That evaluation was underway by 26 April 2018 but, four years on, it is still stuck in the bowels of BEIS. Presumably, officials with wet towels wrapped around their heads are working night and day to come up with a form of words that convincingly presents a woeful take-up rate of just 2% as ‘broadly in line with our target of 25%’.
In December 2018, the Government’s Good Work Plan included a promise to legislate to improve the clarity of the employment status tests (a need identified by the 2017 Taylor Review). And it reiterated the February 2018 promise to “legislate to give all workers the right to request a more stable contract”.
In July 2019, in direct response to the 2016 findings of the Equality & Human Rights Commission’s landmark investigation into pregnancy & maternity discrimination in the workplace, and an August 2016 recommendation of the Women & Equalities Committee of MPs, the Government pledged to extend the period covered by the existing redundancy protections. In 2021, both the Women & Equalities Committee and the Petitions Committee urged ministers to get on with implementing this outstanding policy commitment. However, Maternity Action, the TUC, Maria Miller MP and others have repeatedly suggested that more fundamental reform is needed.
At the same time, the Government committed to establishing a Taskforce of employer and family representative groups to develop an Action Plan to make it easier for pregnant women and new mothers to stay in work. No such Taskforce has been established, but in the summer of 2021 BEIS established a Pregnancy & Maternity Discrimination Advisory Board to “consider the information and guidance available on pregnancy and maternity discrimination, to ensure it continues to be relevant and is effective in supporting employers and employees”. Intended to meet “on a quarterly basis until March 2023”, to date the Board has met only once, on 23 September 2021, and in March 2022 the campaign group Maternity Action – winners of the 2022 Halsbury Award for Rule of Law – were banned from further attendance by a senior BEIS official.
In December 2019, the Conservative general election manifesto (see pp 37-39) promised a consultation on making flexible working the default, and falsely claimed that the Government has already acted on the (still outstanding) July 2019 pledge to reform redundancy protections. The flexible working consultation was eventually held between 23 September and 1 December 2021, but it was clear from the consultation document that the Government has abandoned any idea of making flexible working the default.
The general election manifesto also promised the creation of a single enforcement body (to “crack down on any employer abusing employment law”), repeated the February 2018 pledge to introduce a right to request a more predictable and stable contract, pledged a new right to one week of (unpaid) carer’s leave, and promised legislation to introduce neonatal leave and pay. All four of these pledges were then repeated in the December 2019 Queen’s Speech, as part of the promised Employment Bill (see pp 43-44).
The December 2019 general election manifesto also committed the Government to “look at ways to make it easier for fathers to take paternity leave”. However, there is no evidence of ministers or officials having done any such ‘looking’ since 2019, and certainly no policy proposals have been forthcoming.
In July 2021, a Government Equalities Office consultation on sexual harassment concluded with the Government committing to “introduce a duty requiring employers to prevent sexual harassment” in their workplaces, along with explicit protections from third-party harassment.
In February, on this blog, I noted the lack of success that the Good Laugh Project, run by Jolyon Maugham QC, has been having in using crowdfunded donations to hold power to account. And yesterday the GLP lost yet another case, with the High Court dismissing a GLP claim challenging the legality of ministers’ use of private communication systems, and (reportedly) ordering the GLP to pay £125,000 in costs to the Government.
This claim was heard by the High Court on 22-24 March, and in the weeks ahead of the hearing the GLP had bigged up the associated Crowdjustice crowdfunder – launched in July 2021 and one of 16 launched by the GLP in 2020 and 2021 – in emails to its signed-up supporters and on social media, raising the total from £76,818 on 18 February, to £118,211 by 22 March, when the crowdfunder was (temporarily) closed. Now, all of that money will simply be handed over to the Government that Jolyon and the GLP claim to be holding to account.
The crowdfunder was reopened yesterday, to cover an appeal to the Court of Appeal, and has already brought in another £11,829. Yes, it seems some people really do enjoy throwing good money after bad.
This brings the total raised by the 16 GLP crowdfunders launched in 2020 and 2021 to a stonking £2,403,206. Yet, as the following chart shows, this frenetic money-raising has (so far) resulted in very little. But at least Jolyon is getting to live his values.
Which judicial review and associated crowdfunder will the GLP big up to the FBPE loons next? Judging by the homepage of their website, it could be Abingdon Health, in which (according to GLP’s solicitors, Rook Irwin Sweeney) a “final hearing will take place in May 2022”.
Launched in December 2020, the Abingdon Health crowdfunder had raked in £128,251 by 18 February 2022. And, despite there having been no update since September 2021, as of today it’s up to £128,326, from 5,442 pledges, and has a target of £150,000.
And – lo! – from the GLP’s twitter feed we learn that the final hearing in Abingdon Health is indeed on 3-5 May, and that the last-minute effort to push the crowdfunder towards its £150,000 target has begun.
[Update: Over the Bank Holiday weekend, the Abingdon Health crowdfunder raked in another £28,600 from more than 1,300 punters, and it has a new target of £180,000.]
Correction (8 May): I have today learnt that there are another 11 GLP crowdfunders launched in 2020 and 2021 (they did not come up in my original Google searches). So, there were 27 crowdfunders, not 16, launched in 2020 and 2021. And, in total, these 27 GLP crowdfunders have (so far) raised more than £3 million. Three. Million. Pounds.
Three weeks ago on this blog, I suggested – with a little help from the great Tracey Thorn and Ben Watts – that ministers have shelved their long-promised Employment Bill (again). And on Friday a (rather thinly evidenced) story in the FinancialTimesindicated that the Bill is indeed unlikely to appear in next month’s Queen’s Speech (on 10 May).
However, as alluded to in my reworking of EBTG’s “Missing”, the withdrawal from service of the ‘Big Bus’ Employment Bill does not mean the Queen’s Speech will not contain one or more smaller, standalone legislative vehicles carrying specific ‘reforms to our employment framework’. So, what might be aboard these compact legislative minibuses?
Create a new, single enforcement body, offering greater protections for workers.
Ensure that tips left for workers go to them in full.
Introduce a new right for all workers to request a more predictable contract.
Extend redundancy protections to prevent pregnancy and maternity discrimination.
Allow parents to take extended paid leave for neonatal care.
Introduce a new legal entitlement to one week’s leave for unpaid carers.
Make flexible working the default unless employers have good reason not to.
We already know, from the BEIS consultation that ran between 23 September and 1 December last year, that the Government has abandoned the last of these commitments, despite it having been an explicit manifesto commitment (hence the blatantly dishonest title of the BEIS consultation document). There may still be some minor changes to the ‘right to request’ regime, but these could be implemented by tweaks to the secondary legislation (i.e. the 2014 Regulations). So, no legislative minibus.
Despite some snail-paced progress towards the creation of a single enforcement body – in June last year the Government published its response to the consultation it had conducted between July and October 2019, and this reaffirmed the (manifesto) commitment – it is clear BEIS is nowhere near ready to proceed with the necessary legislation, even if Boris Johnson is still on board (a very open question). So, no legislative minibus on this route, either. The TUC will be (secretly) pleased about this.
One way or another—I will get back to him on the exact way—we will legislate to allow parents of children in neonatal care to take extended leave, giving them more time during the most vulnerable and stressful days of their lives.
So, I think we can expect a legislative minibus on neonatal leave and pay in the Queen’s Speech. Which may well also have on board the promised new right to one week of carer’s leave. Such a legislative minibus would be universally welcomed, and accordingly would sail through Parliament without difficulty.
Similarly, since 2020 ministers have come under sustained pressure from both the Women & Equalities Committee, chaired by Caroline Nokes, and the Petitions Committee, chaired by Labour’s Catherine McKinnell, to deliver on the July 2019 commitment to extend the period covered by the existing Regulation 10 redundancy protections.
That commitment was made in response to the findings and recommendations of the EHRC’s 2015-16 inquiry into pregnancy and maternity discrimination in the workplace, and an August 2016 recommendation by the Women & Equalities Committee, then chaired by Maria Miller. In their February 2021 report on the gendered impact of the Covid19 pandemic, the Women & Equalities Committee urged ministers to deliver on the July 2019 commitment “in this Parliamentary session”, i.e. by May 2021. And, noting the Government’s failure to do that, in September 2021 the Petitions Committee’s second report on the impact of the pandemic on pregnant women and new parents concluded:
We echo our recommendation from [our July 2020 report] that the Government should legislate as soon as possible to introduce its planned extension of redundancy protections for new and expectant mothers. It must clarify a timeframe for doing this, and, if there is not sufficient parliamentary time to consider a full Employment Bill before the end of the year, the Government should immediately bring forward a short Bill specifically to implement these protections.
So, there could be another legislative minibus, on redundancy protections, in the Queen’s Speech. However, this one would not be universally welcomed, and could face a very rough ride through Parliament, not least because the Labour Party, campaign groups such as Maternity Action and Maria Miller MP have repeatedly said that more meaningful reform is needed. Indeed, such a Bill would be a bit of a gift to shadow ministers.
This means we can’t rule out the possibility that ministers have decided to renege on the July 2019 commitment (or, at least, to leave it rusting away in the bus garage for now). Which might explain why BEIS ministers have recently chosen to kick Maternity Action off their Pregnancy & Maternity Discrimination Advisory Board, the creation of which was another part of that July 2019 commitment – to “establish a Taskforce … to develop an Action Plan on what steps Government and other organisations can take to make it easier for pregnant women and new mothers to stay in work” – and which met for the first (and so far only) time in September last year. So, while the Government has a shiny new Action Plan on Animal Welfare, six years on from the EHRC research it still has no Action Plan to tackle pregnancy and maternity discrimination at work.
The pledge to ensure that tips left for workers go to them in full is an even older one, having first been made in October 2018, following a BEIS consultation that ran from 2 May to 27 June 2016. And it was reaffirmed in the Government’s September 2021 response to that consultation. Given that then business secretary Sajid Javid kicked off this somewhat bizarre sequence of review, consultation, pledge and consultation response as long ago as August 2015, it’s not entirely clear how much priority ministers give to this particular commitment, but I will not be totally surprised if we find a legislative minibus with this on board in the Queen’s Speech. Or if we don’t.
As for the promised new right to a more predictable/stable contract – which dates from the Government’s February 2018 response to the Taylor Review, and was repeated in the 2019 Conservative manifesto – I suspect that one is still in a box marked ‘too difficult’ on a shelf in a room hidden away at the back of Kwasi Kwarteng’s bus garage.
Anything else? Well, in July last year a Government Equalities Office consultation on sexual harassment concluded with the Government committing to “introduce a duty requiring employers to prevent sexual harassment” in their workplaces. As with neonatal leave and pay, a legislative minibus carrying such a preventative duty would be widely welcomed, and would most likely sail through Parliament. And it would provide some cover for not proceeding with the July 2019 pledge on redundancy protections.
And let’s not forget that the 2019 Conservative manifesto included a pledge to “look at ways to make it easier for fathers to take paternity leave”. There’s no evidence of ministers and officials having done any such ‘looking’ since 2019 – and their four-year evaluation of the chronically failing Shared Parental Leave scheme has yet to conclude – but maybe they will surprise us. And, again, this might explain why BEIS have booted Maternity Action off their Advisory Board.
Or perhaps ministers will finally act on the 2016 recommendations of the Equality & Human Rights Commission, the Justice Committee and the Women & Equalities Committee, and the April 2020 recommendation of the Law Commission, to extend the Employment Tribunal time limit.
In a week when our elected politicians have seemed ever more detached from the (biological) reality in which we mere voters – unqualified to have an opinion, apparently – are forced to live our dreary cis lives, the highlight was surely the Conservative MP for Bridgend, Jamie Wallis – first elected in December 2019 and previously best known for wearing a Union Jack tie and mask in the House of Commons – firing up Twitter at 2:48am to announce to the world that he is trans.
Jamie will however continue to ‘present’ as a man, and will continue to use he/him/his pronouns. Just as he has since he was wrongly assigned male at birth. Or something.
The new poster boy for trans folks has yet to tell the Twittersphere how his wife Rebecca and their two young daughters feel about his new trans identity, but MPs across the political spectrum were quick to announce their solidaritee with Jamiee.
In the Independent, Foreign Secretary and Minister for Women & Equalities Liz Truss welcomed Jamie’s “brave statement”, while Shadow Foreign Secretary David Lammy confirmed that the “incredibly brave and dignified” Jamie will now be able to grow a cervix, should he wish to do so. And, having already tweeted his admiration for Jamie’s “immense courage”, Boris Johnson later opened Prime Minister’s Questions by pledging “the whole House stands with you and will give you the support you need to live freely as yourself”. I hear that Billy Bragg is re-writing the lyrics of one of his songs.
co-owning a ‘sugar daddy’ pimping website that encouraged cash-strapped students to prostitute themselves to rich businessmen (“Whether you’re a boy, girl, straight or gay, there’s a sugar daddy for you. All our sugar daddies are vigorously vetted to verify their suitability and trustworthiness – you provide the companionship they require, they promise to provide the support you need.”)
fleeing the scene after crashing his car into a lamp post (or, by some accounts, a telegraph pole) in the early hours of the morning, presumably while tired and emotional, in November 2021. And, in February this year, Jamie was fined £270 (enough to pay to apply for a Gender Recognition Certificate 54 times) in relation to a separate driving incident in August 2021. [Update: Jamie has now been charged in relation to the November 2021 incident, and will appear in court on 10 May. Further update: In court on 10 May, Jamie pleaded not guilty and the case will now go to trial in Cardiff Magistrates Court on 11 July. Serves Jamie right for driving a Mercedes, imho.]
It’s not yet clear which of these failures of judgement were due to Jamie’s gender dysphoria, and which were due to Jamie just being a classic Tory twat. But time will tell whether he is able to build on this unenviable record, shine a light for other trans and non-binary people in Parliament and beyond, prove his ‘suitability and trustworthiness’ to the voters of Bridgend, and take his ‘vigorously vetted’ but rightful place in the cabinet of prime minister Liz Truss, Fishi Rishi or (my favourite) Penny Mordaunt.
And time will tell whether David Lammy, Layla Moran, Anneliese Dodds and all the other trans allies continue to stand in solidaritee with Tory Jamiee. Already, Peter Tatchell’s twin brother Peter Tatchell has taken to Twitter to warn that “would-be trans MP Jamie Wallis is no hero”. #Awkward
I step into Hansard I’m wonking down your street again And past your door, but you don’t live there anymore It’s two years since you were in the manifesto And now you’ve disappeared somewhere, like outer space They’ve found some ‘alternative legislative vehicles’
And I miss you, like the workers miss their rights And I miss you, like the workers miss their rights
Could you be dead? You always were going to be a very big Bill We’d try to amend you while you would run We looked at their ‘in due courses’ And their ‘when parliamentary time allows’ Where we always wanted to be
And I miss you (like the workers miss their rights) And I miss you (like the workers miss their rights)
But now they will only ‘outline employment measures’ Or ‘reforms to our employment framework’ And Kwasi Kwarteng has said There will be No Big Bus You’re long gone, but I can’t move on
And I miss you (like the workers miss their rights) And I miss you, yeah (like the workers miss their rights) And I miss you
Last week, the Good Law Project, run by my good friend Jolyon Maugham QC, was in the news for claiming to have won a legal case challenging alleged cronyism on the part of government ministers when appointing Dido Harding and others, when in fact it had used £388,635 of crowdfunded donations to lose a legal case challenging alleged cronyism on the part of government ministers when appointing Dido Harding and others.
Well, I say ‘lose’, but Jolyon insists the Good Law Project only lost “at a deeply technical level”, despite the judges having ruled (see paragraph 126 of the judgment) that – while co-claimants the Runnymede Trust were entitled to a nice-to-have but in practical terms near-meaningless ‘declaration’ that the appointment process had not complied with the public sector equality duty – “the [cronyism] claim brought by the Good Law Project fails in its entirety”. Suffice to say, I plan to adopt Jolyon’s approach at my next annual performance review.
And I say ‘friend’, but in fact Jolyon and I have only ever met twice: once when we sat next to each other at a seminar on Universal Basic Income, and once – a few months later – when he mistook me for the then joint leader of the Green Party, so spent several minutes telling me, in breathless tones, how he’d just come from Downing Street, where he’d met with someone really, really important. Unable to get a word in, I nodded along until, my escort duties complete, I let Jolyon into the room where the then joint leader of the Green Party was waiting to meet him.
But if legal claims can be described as having been ‘won’ when, according to the actual judges who ruled on them, they failed in their entirety, then Jolyon and I can be described as good friends. Even if Jolyon blocked me on Twitter years ago. And the fox that Jolyon boasted about having clubbed with a baseball bat on Boxing Day in 2019 can be described as having died, but only at a deeply technical level. (As Maya Angelou said, when someone shows you who they are, believe them the first time.)
Whatever, you might think that £388,635 is a lot of money to spend on a legal claim that failed at a deeply technical level/in its entirety, but that is not even the largest amount that Jolyon and the Good Law Project have raised via no fewer than 18 separate Crowdjustice crowdfunders in recent years.
That distinction belongs to a claim challenging the legality of the Government’s high priority lane for the awarding of contracts (for the supply of PPE) early in the Covid19 pandemic. For this claim, the Good Law Project crowdfunded a staggering £427,399, but this expenditure has resulted only in the issuing, in January this year, of a similarly nice-to-have but in practical terms near-meaningless ‘declaration’ that the operation of the high priority lane was “in breach of the obligation of equal treatment”. The High Court ruled that the high priority lane itself was not unlawful, and that the contracts in question would most likely have been awarded in any event.
Interestingly, Jolyon and the Good Law Project are now seeking to appeal this outcome in the Court of Appeal. Because winning parties don’t usually appeal their own glorious victories. [Update: On 29 April, the Court of Appeal refused GLP’s application for permission to appeal.]
A third claim, for which the Good Law Project crowdfunded a relatively modest £204,900, also resulted, in February last year, in the High Court issuing a ‘declaration’ that the Government had not fully complied with transparency rules on the publishing of Covid19-related contracts, but declining to order any other relief. As I understand it, the Secretary of State’s explanation for this failure to get all the details exactly right was that he and his Department were very busy dealing with the first wave of Covid, and a huge amount of the burden was falling on him, more than he could realistically be across. Oh, hang on … no, that was Jolyon.
Whatever, that’s a total of £1,020,934 to obtain three High Court ‘declarations’ of extremely limited import. As you may have noticed, no minister has been forced to resign or even apologise, not a single allegedly dodgy contract or job offer has been cancelled, and not a penny of allegedly misspent taxpayers’ money has been recovered from alleged villains. So, if indeed these three cases – and the three nice-to-put-in-a-frame-on-the-wall but in practical terms near-meaningless ‘declarations’ – amount to legal victories for the Good Law Project, they are little more than symbolic victories of a somewhat pyrrhic nature. Just imagine what any half-decent legal advice charity – your local law centre, for example – might have achieved with that £1 million.
And then we come to the crowdfunded-claims that have not even secured such a ‘declaration’. First up is a claim challenging the legality of the award of Covid19-related contracts to associates of Dominic Cummings, for which the Good Law Project crowdfunded a stonking £403,931, but which has (so far) resulted only in the Good Law Project losing big in the Court of Appeal. For some reason, it took the Good Law Project a whole month to update the crowdfunder with this rather significant news. But at least that one has been updated, which is more than can be said of the crowdfunder for a claim seeking to challenge the Government’s Levelling Up fund, for which the Good Law Project raised £84,637 before quietly withdrawing the claim in January on account of its “low prospects of success”.
And then there’s the legal claim alleging impropriety in the appointment of a new Charity Commission chair – “Don’t let government muzzle charities!” – for which the Good Law Project crowdfunded £84,552, only to quietly withdraw the claim earlier this month without achieving anything much [an investigation of the appointment process by the Commissioner for Public Appointments has since concluded that the process was “consistent and fair”, and that there was “no impropriety”].
Then there’s the three claims – one seeking to challenge the outcome of the Electoral Commission’s investigation of Leave campaign funding, one seeking to challenge local authority placement of children in care, and one seeking to challenge the award of Covid19-related contracts to associates of (now former) Downing Street adviser Munira Mirza – for which the Good Law Project crowdfunded a total of £152,736, only for the court to refuse permission to bring the claim in each case.
In the last of these three cases, the High Court refused permission because the Good Law Project’s external lawyers (Bindmans LLP) had bungled the lodging of the application, and the Good Law Project is seeking to appeal that decision in the Court of Appeal: a hearing took place on 1 February (i.e. three weeks ago), and at the time of writing the outcome is awaited. [Update: on 24 March, the appeal was dismissed by the Court of Appeal, and the Good Law Project are now making a further appeal to the Supreme Court.]
So, that’s a total of £725,856 to obtain … nothing. No declarations. Zilch. Nada. Rien.
As for the one solid ‘win’ for Jolyon and the Good Law Project among the 18 crowdfunded legal claims – the famous Wightman case that concluded on 10 December 2018 with the European Court of Justice ruling that the UK’s Article 50 Brexit notification was unilaterally revocable, and which Jolyon has modestly described as “the most important case in modern legal history” – that case is surely the epitome of a hollow victory. For the Article 50 notification never came close to being revoked, and the UK left the EU in January 2020. So, apart from Jolyon himself, and the lawyers who received their share of the £190,650 raised through the Good Law Project’s crowdfunder, not one single citizen has benefitted from the bringing of the Wightman case, and none ever will.
Elsewhere, there is a still unresolved appeal against the charitable status of a lesbian and gay rights campaign group that Jolyon doesn’t like (£71,835 crowdfunded to date), which will be heard by the First-Tier Tribunal in May [now September]; an unresolved legal claim relating to the safety of PCR tests (£52,992 crowdfunded to date), which feels a tad passé; a potential legal challenge to Covid19 school attendance guidance, crowdfunded to the tune of £27,810, which appears to have been overtaken by events; and an attempt to force a review of the Airports National Policy Statement (£60,932 crowdfunded to date), which appears to be on hold.
There are also two related claims challenging ministers’ use of private emails and apps to conduct government business (£76,868 crowdfunded to date and £128,251 crowdfunded to date respectively), in which there is a court hearing scheduled for 22-24 March [Update: the first of these two claims was dismissed by the High Court on 29 April 2022, with GLP having crowdfunded a total of £118,211]; and an on/off legal challenge to alleged bullying of Tory MPs, for which £48,335 was crowdfunded before being diverted to the Good Law Project’s work on ‘partygate’).
And, of course, there’s the Legal Defence Fund for Transgender Lives (£181,835 crowdfunded to date), which is being used to launch legal proceedings against NHS England in relation to the healthcare needs of the trans community.
At the time of writing, you can still fling your dosh at many of these 18 crowdfunders, which between them have (so far) raised more than £2.5 million (£2,586,153, to be exact). It’s your money, so it’s your choice. But you might want to consider whether your money might achieve a tad more real world change elsewhere.
There being an R in the month, there is a new report making the case for a four-day week.
This month, the focus is on Wales, with a report by think tank Autonomy, commissioned by the Future Generations for Wales Commissioner, concluding that a shorter working week (with no reduction in pay) could “contribute to the goal of a resilient Wales, and also a globally responsible Wales”. And, according to this breathless Autonomy report, no fewer than 57% of the Welsh public support a (hypothetical) Welsh Government-backed scheme to move towards a shorter working week (with no reduction in pay). Which rather begs the question: are the other 43% all masochistic idiots, or what?
Unfortunately, as the report itself quietly acknowledges, implementation of a four-day week for all Welsh workers falls “outside the current legislative capacities of the Welsh Government”. But no worries, because we already know from trials in Iceland, Germany and – *checks notes* – an unidentified charity that the four-day week (with no reduction in pay) is the best policy idea … EVER!
Indeed, according to a BBC news headline in July 2021, the introduction of a four-day week in Iceland has been an “overwhelming success”, with 86% of working Icelanders now entitled to “shorter hours for the same pay”. These lucky Icelanders report “feeling less stressed” and “having more time to spend with their families, do hobbies and complete household chores”, the BBC informs us. And sustainable democracy campaigner Gudmundur Haraldsson is on hand to tell the BBC:
“The Icelandic shorter working week journey tells us that not only is it possible to work less in modern times, but that progressive change is possible too.”
[And today, just hours after I published this post, the Guardianreports that “the four-day working week was trialled in Iceland between 2015 and 2019, and it has since become the choice of 85% of the country’s working population”. And the Telegraph similarly reports that “the four-day working week was tested in Iceland between 2015 and 2019, with 85% of its population continuing to do so”.]*
Yay! A four-day week, for five days’ pay! You can sign this enormously progressive wonk up for that. Well, maybe not the ‘completing household chores’ bit. But more time for my hobbies? Bring it ON.
However, if this all sounds just a wee bit too good to be true, that’s because it is too good to be true. For Iceland has not introduced a four-day week (with no reduction in pay).
Sure, between 2015 and 2019, Reykjavík city council and the Icelandic national government ran two trials of a shorter [sic] working week, with no reduction in pay. These involved a total of some 2,500 workers reducing their working week from 40 to 35 or 36 hours (so, not necessarily to a ‘four-day working week’). And official analysis of the trials concluded that “productivity and service provision remained the same or improved across the majority of trial workplaces”, while “worker well-being dramatically increased across a range of indicators, from perceived stress and burnout, to health and work-life balance”.
However, these (arguably unsurprising) findings did not lead to the Icelandic government introducing a four-day week (with no reduction in pay) for Iceland’s workforce of some 200,000, which historically has tended to work relatively long hours, by international standards. Rather, in 2019 and 2020 contracts guaranteeing shorter working hours were agreed between trade unions and Iceland’s private sector employers, local councils and central government. And, according to the July 2021 report by think tank Autonomy on which the BBC news report was based, by June 2021 these new contracts covered some 170,000 trade union members (that is, 86% of the workforce).
More to the point, according to the Autonomy report, these new contracts delivered cuts to the previous working week of just 65 minutes in the public sector, and a mere 35 minutes in the private sector. Whoopee woo.
OK, maybe these small but welcome contractual adjustments will lead to greater change in the longer run. Seven months on from the July 2021 Autonomy report and BBC headline, it is still too early to know. All that this month’s Autonomy report on a more resilient Wales is able to tell us about what has transpired in Iceland is that the new collective agreements “leave open the possibility of reduced hours being implemented more widely across the [Icelandic] economy”. Ble mae’r parti?
Yes, the latest data from Eurostat (the statistical office of the EU Commission) indicates that the average weekly hours of full-time workers in Iceland fell from 44 hours in 2019, to … wait for it … 43.5 hours in 2020 (when there was a global Covid19 lockdown). But clearly we’ll need to see data for 2021 and 2022 before we start popping that siampên.
Whatever, the key point is that, while the Icelandic trials provide very helpful evidence of the (undeniable) benefits of a better work-life balance, and of the impact on productivity of a shorter working week, Iceland is not an example of the introduction of a four-day working week, as proposed for the UK by think tanks such as Autonomy and the Fabians.
None of which is to say that we should not be trying to work towards a shorter working week. As noted above, my hobbies (and even my family) stand waiting. But I’m also still waiting for advocates of the four-day week to explain exactly how it could be delivered across the UK economy without suppressing the income of the millions of hourly-paid workers on zero-hours contracts or other forms of precarious employment, most of whom simply cannot afford a 20% pay cut. On this, pretty much all that the latest Autonomy report has to say is that “there is potential to synergise the policy [of a four-day week] with [Universal] Basic Income”, because “the economic security provided by a guaranteed income can give precarious workers more power to decide their working routines”.
To which I say dim ond breuddwyd yw hynny i chi.
*Today’s report in the Guardian about a planned new law in Belgium – also in the Independent – failed to make the rather important distinction between a right to request compressed hours, and a four-day week as commonly understood (and as advocated by campaigners for, well, a four-day week). As the Telegraphmanaged to concede: “the Belgian model falls short of an actual shortened working week”. I am 86% sure this will lead to me writing another blog post pretty soon.
Recently on this blog, I noted that pretty much all that Labour’s otherwise impressively ambitious September 2021 ‘green paper’ on employment rights had to say about securing a much-needed societal shift towards more equal parenting – a shift essential to ending the Gender Pay Gap, given how much of that pay gap is due to the ‘motherhood penalty’ – is that “a Labour Government would urgently review the failed Shared Parental Leave system, with reforms to incentivise sharing of leave”.
I suggested that, after a marathon, four-year evaluation of the SPL scheme by the current Government, pretty much the last thing we would want from a new Labour government would be yet another ‘review’ to tell us (again) what we already know. But what about those “reforms to incentivise sharing of leave”? And why on earth are they still talking about the sharing of parental leave?
The answer to these questions, I strongly suspect, is that the authors of the ‘green paper’ were heavily influenced by a proposal set out by the Fabian Society and Centre for Social Justice’s Early Years Commission in July 2021 (but seemingly available to and under discussion by at least some of the then shadow ministers for some time prior to publication of the Commission’s report).
Loosely based on the parental leave provisions in Sweden, this proposal would replace both the SPL scheme and the existing statutory maternity leave provisions with a new system consisting of 14 weeks of paid maternity leave (25 weeks fewer than now), 12 weeks of paid paternity leave (10 weeks more than now), and 60 weeks of shared parental leave, to be “shared as a couple wishes”. (In contrast, in Sweden each parent has their own entitlement to parental leave.)
Not to beat about the bush, the proposal is a horrible mess – if its author(s) first established and then followed any guiding principles, it is wholly unclear what those principles might be. And, accordingly, there are a number of reasons why Labour would be unwise to run with it.
Firstly, the proposal fails to recognise the very different purposes of maternity leave and parental leave. Pregnancy and childbirth are not equal endeavours on the part of two parents: unlike new fathers (and other second parents), new mothers need paid time off work to recover from the often severe physical and mental impacts. Plus, many of those new mothers will be breastfeeding (the World Health Organisation and UNICEF recommend that they do so, on demand, for six months).
Similarly, paternity leave is also a health and safety measure, aimed primarily at enabling the father (or other second parent) to support the mother at and immediately after the birth. Becoming a new mother is literally dangerous (especially for black women, who are four times more likely to die during pregnancy than white women). Becoming a new father, not so much.
Parental leave, however, is about parenting. And the goal of policy reform must be more equal parenting over the life of the child, not just in the first 12 or 18 months after birth. The reason those first 12 or 18 months matter so much is that there is overwhelming research evidence that fathers being involved in parenting early in the life of their child leads to greater, sustained involvement over the coming years. And, of course, sharing the care of the child in the first 12 to 18 months enables both parents to retain a strong link with the labour market. But that doesn’t imply or require identical entitlements to paid leave in those first 12 or 18 months.
We know – from BEIS research, a statement by BEIS minister Paul Scully to MPs in June 2020, and the DWP’s quarterly statistics on Maternity Allowance grants – that the average new mother in the UK takes some 39 weeks of statutory paid maternity leave. In other words, she takes her full entitlement to paid leave. And that is hardly surprising, as – contrary to the impression often given by Paul Scully and other government ministers, and even by some academic researchers – the amount of paid leave reserved for new mothers in the UK is short by international standards: in 2020, the OECD and EU averages were 51.5 weeks and 63.5 weeks respectively.
So, were a Labour government to implement the Fabians/CSJ proposal, and cut the duration of statutory paid maternity leave from 39 weeks to just 14 weeks, without reserving any of the 60 weeks of shared parental leave for mothers, it would move the UK to the far left of the following chart. And I’m not sure those are the optics that a new Labour government (or a Labour opposition seeking to win a General Election in 2023 or 2024) would be looking for.
Ironically, had the UK not left the European Union, it would also put the new Labour government at risk of infraction proceedings by the EU Commission. Because, as BEIS noted in its February 2013 impact assessment of the SPL scheme (see paragraph 33 on page 11), under Article 3 of the 1992 EU Pregnant Workers Directive the UK was (while in the EU) required to maintain its provisions at the time of transposition – which in 1999 was 28 weeks of paid maternity leave – not just the minimum of 14 weeks set out in Article 8 of the Directive (this is known as ‘non-regression’). Indeed, it is arguable that it would in any case put the new Labour government in breach of the non-regression provisions of the December 2020 Trade & Cooperation Agreement between the UK and the EU. And, as already noted, it would not sit well with the World Health Organisation and UNICEF recommendation that newborns be exclusively breastfed, on demand, for the first six months of their life.
Yes, under the Fabians/CSJ proposal, new mothers would also have access to some (or even all) of the proposed 60 weeks of shared parental leave. But that brings us to the second reason why Labour would be unwise to run with the proposal: it is simply not clear how or why the proposed entitlement to shared parental leave would work any better than Shared Parental Leave has since 2015.
Sure, a broadly similar system works in Sweden. But the UK is not Sweden, and it cannot be assumed that a system that works in Sweden would produce good results in the UK, where pregnancy and maternity discrimination and other poor practice by employers is widespread and deeply entrenched. Sweden is simply streets ahead of the UK in terms of the economic and social infrastructure, the societal norms, and the workplace culture that are conducive to more equal parenting. Most crucially, in Sweden parental pay is administered directly by the governmental Social Insurance Agency, rather than by employers, the cost of state-subsidised childcare is capped at a fraction of the average cost in the UK, and all children have a right to a place in a nursery school from the age of 12 months.
As the Fabians/CSJ Early Years Commission’s report itself notes, in the UK all too many new mothers “especially from low-income families, return to work earlier than they would have preferred”. So, quite why the members of the Commission thought the solution to that problem is to cut the duration of statutory paid leave reserved for new mothers by two-thirds, from 39 weeks to 14 weeks, is a bit of a mystery.
In short, implementation of the Fabians/CSJ model would drive a coach and horses through the key principle identified by the TUC and others: that the much-needed overhaul of the chronically failing SPL scheme must not involve any erosion of women’s existing rights to leave and pay. In doing so, it would send an appalling message to dinosaur employers all too happy to cut their contractual paid maternity leave to 14 weeks. And it would retain much of the legal and administrative complexity of the SPL scheme so abhorred by parents and employers.
Instead, the new crop of Labour shadow ministers (and their advisers) need to be thinking in terms of individual, non-transferable rights to paid leave for each parent. For it is clear from the international evidence that fathers are more likely to share child care if there is a specific portion of parental leave reserved for them. So, there should be no transferable or ‘shared’ leave, which in any case we know from bitter experience does not work well in the UK. And reform needs to significantly enhance provisions for new fathers (and other second parents), without eroding the existing rights of pregnant women and new mothers.
The Fabians and CSJ are right on one thing though: the need to increase the ludicrously low basic rate of statutory maternity, paternity and parental pay. From April this year the weekly rate of £156.66 will equate to just 47 per cent of a 35-hour week on the adult rate of the National Living Wage (NLW), down from 60% in 2012, and to just 37% of women’s median weekly earnings. Under the Fabians/CSJ proposal, the basic rate of maternity, paternity and parental pay would more than double, to parity with a 37.5-hour week on the NLW – a move that would add £3.4bn to the current annual spend of £2.6bn even without any new entitlements to leave.
Were the average new mother to take 38 of the 60 weeks of shared parental leave potentially available to her under the Fabians/CSJ proposal, in addition to her 14 weeks of maternity leave (i.e. a total of 52 weeks of paid leave, the OECD average entitlement), that would add another £1.8bn per year to the annual spend, even if the average father took no more leave than now. And, were the average new father to take just half of their extra ten weeks of paid paternity leave (as well as the two weeks he already has), and just five of the remaining 22 weeks of shared parental leave, that would add another £1.4bn per year. Yet those average fathers would still be taking only 19% of all leave taken (12 out of 64 weeks), well below the 28% in Sweden.
It remains to be seen whether shadow ministers (including the shadow Chancellor) are up for any – let alone all – of this potential extra cost of some £6.5bn per year, but the bottom line is that increasing the rate of statutory pay across the board is the only credible (and lawful) way to incentivise take-up of parental leave by fathers (as distinct from just making it easier for them to take leave). So, even if take-up of new leave entitlements were lower than assumed in the previous paragraph, the harsh truth is that any serious attempt to generate a shift towards more equal parenting will require serious money.
Which brings me to yet another problem with the Fabians/CSJ proposal. It is inconceivable that any government – even a new Labour government – would be in a position to implement reforms costing billions of pounds per year overnight, in one go. Realistically, such reforms will need to be spread over a decade, or even longer. Which means the reforms will need to be capable of being broken down into practicable stages, each building on the previous stage. And it’s not immediately obvious how the new legal framework at the heart of the Fabians/CSJ proposal could be broken down into a series of incremental, ‘stepping stone’ reforms.
Fortunately for shadow ministers, there is an ‘oven ready’ alternative to the Fabians/CSJ model. Maternity Action has proposed a simple 6+6+6 model consisting of individual, use-it-or-lose-it rights to six months of paid maternity leave (for birth mothers) and six months of paid parental leave for each parent. This would provide new fathers (and other second parents) with their own entitlement to six months of paid parental leave (to be taken in blocks or all in one go), while maintaining (in slightly altered form) the existing rights of pregnant women and new mothers.
This new legal framework (and a doubling of the basic rate of pay) could be introduced in stages over 10-15 years, with annual increases in the total spend of less than £300m in all but one year. And the principles on which the model is based have already been publicly endorsed by more than 20 organisations and trade unions, including the Fawcett Society, Gingerbread, NCT, the Royal College of Midwives, the TUC, Unison, Unite, the Women’s Budget Group and Working Families.