Good Law Project: Lies, damn lies, and statistics

Previously on this blog, I have cast a weary and cynical eye over the ‘case outcome tracker’ spreadsheet first published by the “super-transparent” Jolyon Maugham and his (Not Very) Good Law Project in June 2022, then updated in late November. And last month, shortly before the publication of Jolyon’s much panned booky wook, the GLP again updated the spreadsheet, so that it is “correct up to the end of January 2023”.

As when the spreadsheet was first updated, very little has changed: in November, the GLP identified 40 legal cases in which “we can say” what the outcome was, and claimed to have won 18 of them (45%). This is the percentage that Jolyon uses in his booky wook, Apricots plopping onto Goliath, before going on to contrast it with the proportion of judicial review claimants who obtain a judgment in their favour in court.

In the newly updated spreadsheet, there are now 43 such legal cases, of which the GLP claims to have won 19 (44%). Hold that front page!

Life is short, so I’m not going to repeat all of what I said in December about this 44% figure, and the disingenuous comparison with the proportion of judicial review claimants who obtain a judgment in their favour in court. But suffice to say:

The GLP’s ’19 legal wins’ still include the case that was actually brought and won by Gina Miller in 2016 and early 2017, when the GLP did not even exist. (Somewhat bafflingly, Jolyon now says that this case “didn’t really matter” anyway, because “Parliament was going to trigger Article 50 whatever”. So the GLP is claiming credit for a legal win by someone else that – *checks notes* – didn’t really matter anyway. Nice.)

Of the remaining 18 ‘legal wins’, nine cases did not get as far as a court judgment. Indeed, in five of these nine cases the GLP did not even issue a judicial review claim. As I noted in December, the GLP appears unable (or unwilling) to distinguish between correlation and causation, but in any case these nine claimed ‘legal wins’ simply cannot be likened to cases in which a judicial review claimant obtained a judgment in their favour in court. Apples are still not oranges.

That leaves nine claimed ‘legal wins’ that were decided in court. But, once again, one of those is the Cronyism case on which the GLP infamously blew £388,635 of other people’s money, only to lose in the High Court in February 2022 and be ordered by the Court to pay 80% of the Government’s (substantial) legal costs. As Lord Justice Ward famously said in 2006: “The question of who is the unsuccessful party can easily be determined by deciding who has to write the cheque at the end of the case.”

So, that leaves eight court wins, out of 42 cases. Which is 19%, not 44% (or 45%).

Furthermore, once again there are nine cases that the GLP have strangely but conveniently excluded from their denominator (i.e. the 42 legal cases) by putting them in their ‘can’t yet say what the outcome is’ category (shaded grey in the spreadsheet), when in fact there is a clear outcome. These include the claim issued in respect of a Covid19 public inquiry, which was abandoned by the GLP in 2021 after permission was refused by the High Court; the claim issued in respect of the Pannick legal advice to Boris Johnson, which was abandoned by the GLP late last year; the claim in the Ministerial Emails case which, having already been dismissed by the High Court, was dismissed by the Court of Appeal in December; and – despite the spreadsheet supposedly being “correct up to the end of January 2023” – the the Trans Healthcare claim, which was dismissed by the High Court on 16 January 2023.

Including these nine cases makes it eight court wins out of 51 legal cases. Which is 16%, not 44% (or 45%).

As in December, the last thing to say about these eight court wins is: what did they actually achieve? For example, despite the famous overturning of the Prorogation of Parliament in 2019, and as you may have noticed, we still left the EU. Similarly, as Jolyon cheerily conceded last month when promoting his booky wook, what he himself describes as his ‘biggest win’ – the Wightman case in 2018 about the revocability of the Article 50 notification – “didn’t make any difference”. And the declaratory relief obtained in the Covid19 contracts transparency case, and in the two VIP lane-related cases of Ayanda and Pestflix, are nice things for Jolyon to put in frames on his wall, but are of negligible value to you, me or anyone else: not a penny has been recovered for taxpayers.

More to the point, perhaps, are these eight, largely inconsequential court wins in six years really worth the £4,802,094 that, as of today, the GLP has raked in through crowdfunders, plus the £10-11 million of direct donations? That’s an awful lot of money that, in the right hands, might have achieved a lot of real change, to the benefit of a great many people.

Then again, at least Jolyon and the some 50 GLP staff get to live their values, fight the power, and keep the receipts.

For the sake of completeness, it’s worth noting that, in the updated ‘case outcome tracker’ spreadsheet, the GLP claim a ‘mixed outcome’ in a further nine cases (which, out of 43 legal cases, is 21%). And, in his booky wook, Jolyon asserts that “our assessment of legal outcomes is that 45% are wins [and] 20% are mixed”. Suffice to say, seven of these nine cases did not get as far as a court judgment, in one of the two cases that did (Vote Leave funding appeal) the judgment was not in the GLP’s favour, and in the other (Capita: training exit fees) the legal outcome was indeed very mixed (and of little consequence).

Whatever, here’s my own, updated Table of Failure & Futility (TOFF), showing the sum raised by and outcome to date of each of the GLP’s 57 crowdfunders since 2017, including the one launched last October about sewage dumping that Jolyon has modestly suggested “could be the most consequential environmental law case in recent history”, the one about a cattle farm on the River Wye that has been raking it in from the green welly brigade and multi-millionaire fashion victim Dale Vince, an admirable one about asylum-seeking children, and the latest one about Voter ID, which may or may not lead to actual litigation at some point in the future. (Incidentally, the GLP appears to be giving up on Crowdjustice – three of the four most recent crowdfunders are in-house GLP productions, which just happen to be less transparent.)

Note that my updated TOFF includes two GLP successes not covered by the updated ‘case outcome tracker’: a successful appeal against a Shrewsbury Town Council planning decision in March; and the funding of Nina Cresswell’s successful defence of a libel claim in April. Including these two successes would make ten court wins out of 53 cases = 19%.

Update, 3 June: Yesterday, the GLP announced that the Supreme Court has refused permission to appeal in the River Wye case, for which they had raked in £53,195 plus £40,000 of match-funding from the mega-wealthy, football crazy Vince Dale. So it’s now ten court wins out of 54 cases.

Update, 8 June: Yesterday, just six weeks after the last ‘quarterly’ update, the GLP updated the casetracker once more, so that it is “correct up to the end of April 2023”. Of six cases previously categorised as ‘awaiting an outcome’, four – Public Spaces (Shrewsbury Town Council), Nina Cresswell, New Culture Forum, and Ventilator Challenge – are now claimed as ‘legal wins’, and two – Ministerial Emails and Partygate (2nd JR) – are now (correctly) categorised as ‘legal losses’. So, according to the GLP, the proportion of legal wins has increased from 19/43 (44%) as of the end of January, to 23/49 (47%) as of the end of April. However, the New Culture Forum and Ventilator Challenge cases did not proceed beyond pre-action correspondence, and there was no court judgment. So, according to my analysis, as set out above, it’s still only ten court wins out of 57 cases = 18%.

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The incredible shrinking ET backlog

Back in March, I noted on this blog how HM Courts & Tribunal Service had begun to revise its previously published management information on the backlog of Employment Tribunal cases, and how this had started to shrink the size of the previously ever-growing backlog. And the latest set of monthly data, published yesterday, indicates that this magical process has not only continued, but has accelerated.

So, for example, the backlog as of April 2022, which was 48,499 according to the HMCTS data set published on 13 February 2023, but which had been shrunk to 48,139 and then to 47,394 in the data sets published on 9 March and 13 April, has now been revised down to just 44,364. And the backlog as of November 2022, which was 51,670 according to the data set published on 12 January 2023, but which had been shrunk to 50,473, 49,592 and 48,308 in the data sets published on 13 February, 9 March and 13 April, has now been revised down to just 43,980 (an overall downwards revision of 15%).

According to this latest data set, and in marked contrast to the previous data sets, the backlog has been under 45,000 since at least March 2022. And, as of March 2023, it stood at a mere 42,980.

Which is very good news, and means that my chart of the backlog since March 2018 now looks like this:


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A hollow victory? Enforcement of unpaid ET awards

On a cold, grey day in early 2009, I was summoned to a meeting with officials at the headquarters of the Ministry of Justice in Petty France. A few months previously, in response to a series of reports I had written for Citizens Advice since 2004 about the widespread non-payment of Employment Tribunal awards supposedly ‘won’ by CAB clients, the officials had commissioned independent research on the extent of such non-compliance. And they had not hidden from me that they had only done so in full expectation that the research findings would crush my impertinent suggestion, set out in my October 2008 report on the issue, that as many as “one in ten” of all ET awards were not paid in full, and bring an end to my five-year campaign on the issue. Because pretty much everyone, including the TUC, had unhelpfully declared that non-payment of awards was ‘not a problem that we see’. So I entered the building with a heavy heart.

Unfortunately for the officials, the independent research – eventually published in May 2009 – had found that almost five in ten ET awards – 47% – were not paid in full (8% were only part paid, and 39% were not paid at all). And, through gritted teeth, they told me that ministers had concluded that they now had no choice but to act to address this obvious injustice. On my way back to the office, I bought a very big box of chocolates to share with my Citizens Advice colleagues.

Unfortunately for me and the thousands of ET claimants each year who were ‘winning’ their claim only to never see a penny of their award, ministers and officials had no idea how to address this injustice, especially as ministers had made it clear there would be “no new money”. And by 2012 it was clear that the low cost ‘solution’ that we helpfully suggested to them and which they introduced in April 2010 – enforcement of unpaid ET awards by High Court Enforcement Officers under a new Fast Track mechanism – was simply not working anywhere near well enough.

All was not lost, however, as by then the baton had been taken up by Liberal Democrat MP and junior business minister Jo Swinson, who in 2013 commissioned further independent research (essentially repeating that conducted for the Ministry of Justice in late 2008). And, once again, the research found that about half – 51% – of all ET awards were not paid in full (16% were only part paid, and 35% were not paid at all).

This confirmation gave Jo Swinson the leverage she needed to insert into the then Small Business, Enterprise & Employment Bill (later the 2015 Act) provisions that I had first proposed to Coalition ministers in 2012, to no avail, during the passage of the then Enterprise & Regulatory Reform Bill (later the 2013 Act). And between April 2016 and January 2020 the resultant section 150 penalty regime recovered more than £2.5 million worth of previously unpaid ET awards.

Ironically, by the time of the Small Business, Enterprise & Employment Bill in 2014 the ‘policy problem’ of unpaid awards had been largely massaged away by the ET fees regime introduced in July the previous year, as the hefty fees pretty much eradicated the very kind of relatively low-value claim which had tended to result in non-payment of the award. But in July 2017 the fees regime was abolished by a ruling of the Supreme Court, and claim numbers began to bounce back (though not to previous levels – see below).

Also in July 2017, the Taylor Review of Modern Working Practices recommended that, while the section 150 penalty regime established in April 2016 “is a free and successful [sic] route as a first step in prosecuting unpaid ET awards”, employers who do not pay an ET award within a reasonable time should be publicly ‘named and shamed’. And, in December 2018, having accepted this recommendation, the Government established a naming scheme, under which employers would be named by means of “approximately quarterly” press releases.

However, more than four years on, there have been no such press releases and not one employer has been publicly named under the naming scheme. In November 2022, in response to a Freedom of Information request (FoI 2022/27704), the then BEIS (now the Department for Business & Trade) could say only that “naming [employers] is being kept under consideration by the Government”. Yet the Department is still asking ‘successful’ ET claimants who have not received their award to report the employer so that they can be “fined and named online by the Government”.

Furthermore, it is far from clear that the section 150 penalty regime is a “successful route” for enforcing unpaid awards, as suggested by Matthew Taylor in his 2017 report (which, as noted above, was written when the problem had in fact been largely massaged away by the ET fees regime). In response to recent Parliamentary Questions in both the House of Lords and the House of Commons, the Government has declined to provide data on the number of warning and penalty notices issued to employers, and the number and value of unpaid awards successfully enforced, since April 2016. But the above-mentioned BEIS response to a Freedom of Information request states that just 1,123 unpaid awards (worth a total of £6.5 million) were “recovered for claimants” between April 2016 and November 2022.

That Freedom of Information response further states that, as of November 2022, financial penalties with a total value of some £2.3 million had been issued to 1,230 employers since 2019/20. So, how much of that £2.3 million has the Department actually received from employers? And what has it been spending that money on, if not quarterly press releases ‘naming & shaming’ the employers in question?

Extract from BEIS FoI response 2022/27704, dated 28 November 2022

Unfortunately, there is no available official data on the total number of ET awards made in each year since 2016/17 that could be used to establish the proportion of all awards that have required enforcement action under the s150 penalty regime, even if the Department for Business & Trade were willing to provide data on the number of warning and penalty notices issued to employers. HMCTS only publishes data on the number of awards made in seven jurisdictions: unfair dismissal, and race, sex, disability, religious, sexual orientation and age discrimination. However, this limited data does suggest that the total number of awards has fallen somewhat since the time of my reports on unpaid awards for Citizens Advice.

The annual number of unfair dismissal awards, for example, has plummeted from an average of 2,510 in the four years prior to the introduction of ET fees in 2013, to an average of just 575 in the four years up to and including 2021/22. Similarly, the average annual number of sex discrimination awards has fallen from 150 to 34, the average annual number of race discrimination awards has fallen from 62 to 26, and the average annual number of age discrimination awards has fallen from 25 to 14.

These figures no doubt reflect a number of factors, not least the introduction of mandatory Acas early conciliation in 2014, a long-term decline in the number of new ET cases since 2010, and an associated decline in the number of ET claims that are successful at a hearing or result in a default judgment, which is probably the best available proxy for the total number of monetary awards (though we also have to allow for some of those successful claimants having won claims in more than one jurisdiction – a point to which I return below). In 2022 there were just 32,790 new ET cases (single claims/cases + multiple claimant cases), little more than half the 59,977 in 2012. In the financial year 2009/10 there were 71,300 single claims/cases alone (at that time, HMCTS did not publish data for the number of multiple claimant cases).

As well as a decline in the annual number of new ET cases (and therefore the number of disposals), there has also been a significant fall in the proportion of jurisdictional claims (or ‘complaints) that are successful at a hearing or result in a default judgment, from an average of 18% in the four years prior to the introduction of ET fees in 2013, to an average of 14% in the four years up to and including 2020/21 (data for 2021/22 is not yet available). As a result, the number of jurisdictional complaints that are successful at a hearing or result in a default judgment has fallen significantly, from an average of 42,275 in the four years prior to the introduction of ET fees in 2013, to an average of 13,453 in the four years up to and including 2020/21.

Not every jurisdictional complaint that is successful at a hearing or results in a default judgment will involve a monetary award, but in the absence of official data for monetary awards in jurisdictions other the seven noted above, this is probably the best available proxy for the total number of jurisdictional complaints that result in a monetary award. And we then need to divide this number by the number of jurisdictional complaints per claimant, which in the 27 quarters from April 2016 to December 2022 averaged 1.6 (down from an average of 2.0 in the 12 quarters from January 2013 to December 2015), to arrive at an estimate of the number of claimants who win a monetary award (Row B in the table below).

The most recent government-commissioned research on the non-payment of monetary ET awards – that commissioned by Jo Swinson and published in November 2013 – found that 51% of awards were not paid in full. And, if we apply that proportion to the number of claimants who win a monetary award in each year since 2016/17 (Row B), we get figures for the potential number of ET awards not paid in full (so liable to enforcement action) in each year (Row C in the following table). Note that, in line with the analysis above, these figures are a fraction of the 15,000 figure used in my 2008 report.

In summary, in the period April 2016 to November 2022, there were possibly some 26,000 ET awards that were not paid in full (assuming 4,000 in 2021/22, and 2,000 in April to November 2022). We don’t (yet) know how many warning and penalty notices were sent out by the Department for Business & Trade in this period, but we do know that only 1,123 unpaid awards were recovered for the claimant. Which – if my figures in Row C of the table above are in the right ball park (which they may well not be, for several reasons) – is an enforcement rate of less than 5%.

And if, as the Department suggests in its November 2022 Freedom of Information response, the 1,123 successfully enforced awards were worth a total of £6.5 million, then the some 24,880 unpaid awards that were not enforced were collectively worth as much as £151 million to the workers in question.

Come back you High Court Enforcement Officers, all is forgiven. Indeed, another thing we don’t know is how many people have paid the £71 fee to use the Fast Track enforcement mechanism – which still sits alongside the section 150 penalty regime – since the latter was established in 2016. It seems reasonable to assume that most people will have opted to use the free section 150 penalty mechanism, but we don’t actually know that [see update, below].

On Tuesday 25 April, the Employment Legal Advice Network (ELAN) is holding an online knowledge sharing event on this issue. If you have experience of unpaid ET awards, or would just like to learn more about the issue, please do join us.

Update, 19 May: In answer to a written Parliamentary Question tabled by shadow employment rights minister Justin Madders MP, the justice minister has provided data for 2019-21 confirming that, generally speaking, ET claimants with an unpaid award (or Acas settlement) are not using the Fast Track (High Court Enforcement Officers) enforcement mechanism. Why would they, when they have to pay a £71 fee to do so, but the s150 penalty regime operated by DB&T is free to access? Accordingly, what matters is the effectiveness of the s150 penalty regime operated by DB&T.

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Honey, they’ve shrunk the Employment Tribunal backlog!

So, according to the Minister’s answers to a series of Parliamentary Questions tabled by Angela Rayner, the shiny new Employment Tribunal case management system that HMCTS introduced – presumably at some expense – in March 2021 is unable to generate data on ‘average age at disposal’ (that is, how long it takes the ET system to process a case, on average). The old ET case management system used to generate such data for single claims/cases and multiple claimant cases, and until March 2021 the figures were routinely included in the quarterly tribunal statistics published by HMCTS. And every now and then I would produce a chart

However, the figures have been absent from the quarterly tribunal statistics since March 2021 and, in his answers of 28 February and 13 March to the PQs tabled by Angela Rayner, justice minister Mike Freer has confirmed that this is because such ‘average age at disposal’ data is not available from the new case management system. Which, given what we know about the growth in the backlog of ET cases since March 2021, may be less a bug than a feature, from the Minister’s point of view. 

Another bug – or feature – in the new case management system is that it seems unable to generate reliable data on that backlog of ET cases. The following table shows the backlog (single cases + multiple claimant cases) at the end of each month since January 2022, as reported in each of the six monthly data sets of HMCTS management information published since October 2022.

In each of the four data sets published between 10 November 2022 and 13 February 2023, the figure for the backlog (i.e. outstanding caseload) at the end of each month since January 2022 was almost invariably revised (slightly) upwards, with the data set published on 13 February indicating that the backlog was more than 50,000 at the end of every month from September to December 2022. However, in the data set published on 9 March, every figure for the backlog has been revised (slightly) downwards, with the result that the backlog did not exceed 50,000 until January 2023.

Time will tell whether this bug – or feature – in the new ET case management system will keep the backlog of ET cases below 50,000 indefinitely, but in the meantime my chart of the backlog now looks like this:

Update, 13 April: According to the latest set of HMCTS management information, published earlier today, the backlog of ET cases was not only below 50,000 at the end of February 2023, but never actually reached 50,000, as had been indicated by the four previous sets. So, definitely more a feature than a bug.

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Stonewall Top 100 Employers: spooked out

The main story from this week’s release of the Stonewall Top 100 Employers 2023 is the near total disappearance, since 2022, of government departments and agencies (other than NHS bodies). Last year, the spooks at MI6 sat proudly at #52, and it seemed entirely appropriate that an organisation full of people who spend their whole lives pretending to be something they are not should have been lauded by Stonewall on behalf of the LGBTQIA2S+ community. But now the spooks are gone, along with the Department for International Trade, the Financial Ombudsman Service, the House of Lords, the Financial Conduct Authority, the Insolvency Service, and the Royal Navy.

The boys, girls and non-binary kids at the Environment Agency are hanging on in there, but even they have slipped from #16 to #43. And the number of police and fire services in the list has fallen from seven to four.

Also missing from the 2023 list are last year’s wokest employer, the global financial services firm Macquarie Group. In February 2022, after the Group topped the list, Paul Plewman, Chief Executive Officer for Macquarie Group in Europe, Middle East and Africa (he/him), said he was “thrilled with the recognition of how important LGBTQ+ inclusion is to Macquarie” which “recognises years of work to ensure that all our people feel empowered and can thrive”. But maybe the Macquarie team in the UK just isn’t that bothered about their LGBTQ+ people feeling empowered and thriving any more.

Whatever, there were plenty of woke banks and financial services firms, and universities, to fill the gaps. So, welcome, DLA Piper LLP, Brunel University, Virgin Money, Oxford Brookes University, AXA UK, University of Huddersfield, Capital One, Grant Thornton LLP, Nationwide Building Society, Birmingham City University, and the wonderfully named Womble Bond Dickinson LLP. May all your peeps feel empowered and thrive.

To win one of the coveted Top 100 spots, employers are required to demonstrate their work in eight areas of employment policy and practice, and undertake an anonymous staff survey about experiences of diversity and inclusion in the workplace. However, it would appear that those eight areas of employment policy and practice do not include equal pay, as the magic circle law firm Clifford Chance won the top spot despite having an overall gender pay gap of 64.9% in 2021, along with a 53.6% ethnicity pay gap, a 34.4% disability pay gap and even a 31.3% LGBT+ pay gap.

Similarly, the law firm Linklaters, which rose from #53 in 2022 to #9 this year, had an overall gender pay gap of 61.9% in 2021, as well as a 36.5% ethnicity pay gap.

Clearly, to Stonewall, the ‘inclusion’ of some employees matters more than that of others.

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Louise Raw, huh, what is she good for?

Previously on this blog, I have repeatedly – some have said “obsessively” – expressed my doubts about the propriety and indeed morality of grifting large sums of money from understandably outraged but ill-informed members of the public to pursue (sometimes vaguely specified) legal claims of questionable legal merit. And the principal focus of my scribblings has been the fox-battering but mermaids-loving Jolyon Maugham and his (Not Very) Good Law Project, who since 2017 have leveraged Maugham’s “strong presence on social media” to rake in some £4.6 million through no fewer than 53 Crowdjustice crowdfunders – and at least another £6.5 million in direct donations – without achieving very much for the public good. But a recently-launched crowdfunder has achieved the remarkable feat of making Jolyon look like a wise and well-balanced man living his (good) values on behalf of us all.

On 20 December 2022, Dr Louise Raw – a lefty historian – launched a GoFundMe crowdfunder, with a modest target of £15,000, to fund legal action against Jeremy Clarkson, the Sun newspaper and its editor in respect of a typically puerile and offensive column by Clarkson published by the Sun four days previously. The Good Doctor already had “a team of lawyers to review the case”, but if there was any money left over after paying their fees it would be donated to “a domestic violence charity”.

Within 48 hours, the crowdfunder had raked in £11,515 from 192 outraged donors, with a stonking £8,500 (74%) of that total having been pledged by just three wealthy citizens (two of them anonymously). It turns out rich, privileged people have their uses after all. And by Christmas Day the total had reached £13,209.

However, by then the barrister and award-winning legal blogger Matthew Scott had kindly provided the Good Doctor with all the legal advice that she (and prospective donors) needed. For free! In a nutshell, while Clarkson’s column of 16 December “was a horrible piece that should have been strangled at birth [and] quite rightly generated thousands of complaints”, there is no realistic prospect of either a civil claim or a private criminal prosecution succeeding, and the Good Doctor would simply expose herself to the risk of substantial adverse costs. In Scott’s words:

Any competent lawyer will be bound to advise Dr Raw that she would be exceptionally unwise to bring a case against Mr Clarkson. The chances of success are tiny, the risks [in terms of adverse costs] are huge. It should not cost them £15,000 to tell her that.

At that point, the Good Doctor should have swallowed her pride, and donated the £13.2K to a domestic violence charity of her choice. Jeremy Clarkson and the Sun would not have been ‘held to account’, but £13.2K would have been redistributed from people with money to burn – three of them with a fuck of a lot of money to burn – to victims of domestic violence. Viva la revolution!

But, of course, the Good Doctor did not swallow her pride. The free legal advice provided by Matthew Scott and others was just “predictable trolling by bad faith actors”, and “pessimists can’t shake us”. Root out hatred, stay optimistic! In any case, “every penny goes to a domestic violence charity if not used for the legal case”. So that’s all right then.

However, in bad news for that (unnamed) domestic violence charity, on 11 January the Good Doctor announced that she had started spending the £13,922 she had by then garnered from 367 well-intentioned but evidently ill-informed donors, by instructing not one but two law firms to pursue Clarkson. On “the civil side”, Equal Justice Solicitors have been instructed to “obtain advice” from Cloisters Chambers. And, on “the criminal side”, Waterfords Solicitors have been instructed to … er, do something or other. Maybe ‘read Matthew Scott’s blog’.

As it happens, Waterfords Solicitors have experience in this field. In June 2020, Mahsa Taliefar – a photogenic law student – launched a GoFundMe crowdfunder on behalf of Aaron Soni – the “always there” but less photogenic owner of Waterfords Solicitors – aimed at “exploring avenues leading to the prosecution of Dominic Cummings” for his (unlawful) round trip from London to Durham in March. Funnily enough, Waterfords Solicitors were promptly instructed but, naturally, if any funds were left over after “prosecuting Dominic Cummings and holding him to account” they would be donated to the charity Vision Aid Overseas (since renamed Vision Action).

Taliefar’s crowdfunder raked in a total of £42,783 from some 2,500 donors, but it is not clear how much of that £42.8K was spent on (a) the preliminary legal advice by Ben Douglas-Jones KC (since deleted) and the contradictory “updated advice” from Douglas-Jones and Nathaniel Rudolf (now also KC) in July 2020 that “a private prosecution under the The Health Protection (Coronavirus) Regulations 2020 is not possible”; (b) the legal fees of Waterfords Solicitors in respect of their 50-page final advice in March 2021 that there probably wasn’t a sound legal basis for Taliefar to proceed with a private prosecution of Cummings for the common law offence of Misconduct in Public Office; and (c) the 28-page Digital Forensics report (see pp 68-95) that Waterfords commissioned from Tahir Butt of Digital Investigations Limited, and how much was donated to Vision Aid Overseas/Vision Action.

Whatever, as predicted by one Matthew Scott in July 2020, the crowdfunder did not lead to any civil claim or private prosecution of Dominic Cummings by Mahsa Taliefar. (There were other, similarly crowdfunded attempts to ‘hold Dominic Cummings to account’, including an attempted judicial review of the Director of Public Prosecution’s decision not to investigate Cummings, funded by a Crowdjustice crowdfunder launched by Martin Redston, that was thrown out by the High Court in November 2020).

Back to the present, and total donations to the Good Doctor Raw’s crowdfunder have now passed £14K. Well done, Janet Rees (£25), Mary McCarthy (£25), Shaun O’Connor (£10), and Richard Bush (£10) for rooting out hatred and staying optimistic. And maybe one day we’ll find out how much of the £14K was blown on legal fees (and digital forensics reports), and how much was donated to a domestic violence charity. Watch this space.

Raw, huh, yeah
What is she good for?
Absolutely nothing, uhh

Say it, say it, say it
Raw (uh-huh), huh (yeah, huh)
What is she good for?
Absolutely nothing, listen to Matthew Scott

Update, 3 February: Yesterday, having raked in just £310 from 15 small donations since Doctor Raw announced her illustrious legal team on 11 January, the crowdfunder finally hit its £15,000 initial target, thanks to a stonking £733 anonymous donation from yet another comfortably off citizen imbued with optimism.

Update, 13 February: In further bad news for that (still unnamed) domestic violence charity, a “first tranche of funds” has now been released from GoFundMe to Equal Justice Solicitors, who have sent a “brief” to Tom Coghlin KC of Cloisters Chambers, to whom a tranche of funds may presumably be released in due course. However, in what could prove to be bad news for Waterfords Solicitors, work on “the Criminal side” has been paused, “at least for the time being”.

Update, 24 May: After three months of silence, at 10:25pm on Sunday 21 May, the Good Doctor Raw quietly announced on Twitter that, having “received and digested” the Opinion of Tom Coghlin KC of Cloisters Chambers – not to be confused with Tom Coughlin KC, whoever he is – she is now “on the road to try to get a change in the law”. And a long, rambling update to the crowdfunder on 22 May suggests that, if Meghan Markle cannot be persuaded to join a group action, Doctor Raw and her supporters will “push back against the far right sexist and racist elements in our society” by erecting a statue of Meghan and Harry. Or something. Suffice to say, it does not look as if a civil or criminal prosecution of Jeremy Clarkson by Doctor Raw is on the cards. Who’d a thunk it?

There is no indication of how much of the £15,335 raked in to date has gone on the legal fees of Tom Coghlin KC and Equal Justice Solicitors, and no mention of a domestic violence charity. But if you donated, and if you now instruct a solicitor and send “a letter before claim” to Clarkson and The Sun, then Equal Justice Solicitors will share Tom Coghlin KC’s advice with your solicitor “to protect privilege”. So, bung the Good Doctor another £20, and find yourself a solicitor.

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Good Law Project: Not lookin’ like a true survivor

Last month, I noted on this blog how November had been a big, bad month for Jolyon Maugham and his (Not Very) Good Law Project. And how – thanks to the Court of Appeal and the Charity Commission (or “pretend charity regulator” and “right-wing attack dog”, as the perfectly sane Jolyon calls it) – December hadn’t got off to a great start either.

The rest of December passed relatively quietly, with just one more embarrassing legal defeat for the GLP: on 19 December, the Supreme Court refused the GLP permission to appeal the January 2022 ruling of the Court of Appeal in the case of Public First (see below). But it was also a quiet month on the GLP’s open crowdfunders, with new donations totalling just £27,207, down from £98,200 in November and £91,389 in October, and little more than half the monthly average of £45,300 over the first eight months of 2022/23.

Indeed, while there are still four weeks to go until the end of the GLP’s 2022/23 reporting period (which runs from 1 February to 31 January), total income from Crowdjustice crowdfunders has slumped from £1.144 million in 2020/21 and £1.863 million in 2021/22, to just £580K in 2022/23 to date. And £263K (45%) of that £580K came through crowdfunders launched in previous years.

For example, £103,385 (18%) of the £580K came through a crowdfunder launched back in July 2021, to fund the GLP’s ‘ministerial emails’ case. At the start of 2022/23 the crowdfunder had already raised £76,818, and by the time the GLP’s judicial review claim was dismissed by the High Court in April 2022, the total had grown to £118,211. Then, thanks to some heavy promotion on social media by the GLP, in just five days in early November – when the GLP’s appeal was heard by the Court of Appeal – the crowdfunder raked in another £45,423 from some 2,250 new donors. So that, by the time the appeal was dismissed by the Court of Appeal on 1 December, the total had reached £180,203.

No wonder then, that throughout December the GLP repeatedly emailed its supporters, begging them to become a regular donor. “Our work is getting more and more challenging. We have seen eye-watering costs from Government designed to scare us off, a steady drumbeat of attacks on us by Ministers, and threats targeted at judges to curb judicial review. We will keep going, but this is no easy fight. Despite everything that’s been thrown at us this year, we’re still here. We’re still standing.” All that was missing was a soundtrack of Elton John singing his 1983 hit.

The reasons for this dramatic slump in crowdfunded income are not complicated. The GLP was made by one unique set of circumstances: Brexit and Boris Johnson. And then, with Brexit a done deal, it was saved by another: Covid and Boris Johnson. As in the twice defeated ‘ministerial emails’ case above, for which the GLP raked in more than £180,000, for two years a new GLP crowdfunder simply had to include the magic words ‘Dominic Cummings’, ‘Matt Hancock’, ‘cronyism’ or ‘Boris Johnson’, and the money would flood in, regardless of the legal merits of the proposed judicial review claim. But over the course of 2022 this business model was destroyed by the departure of Cummings, Hancock and Johnson, and – more significantly – a series of crushing legal defeats in court.

Things started to go badly wrong for the GLP in January 2022, when the High Court issued a declaration that the Government’s VIP lane for the awarding of Covid-related contracts was technically “in breach of the obligation of equal treatment” under the Public Contracts Regulations 2015, but ruled that all of the contracts in question would most likely have been awarded in any event, and ordered the GLP to pay £250,000 of the Government’s legal costs. This was such a glorious victory for Jolyon and the GLP that they immediately sought permission to appeal in the Court of Appeal.

A few days later, the Court of Appeal allowed the Government’s appeal against the GLP’s earlier High Court win in the case of Public First, a market research agency run by former associates of Dominic Cummings. And the following month the High Court not only dismissed “in its entirety” the GLP’s judicial review claim alleging cronyism on the part of government ministers when appointing Dido Harding and others, but questioned whether the GLP has standing to even bring such claims, and ordered the GLP to pay 80% of the Government’s legal costs (provisionally estimated at £360,000).

In late April, the Court of Appeal refused the GLP permission to appeal in the VIP lane case. And, as noted above, the very next day the High Court brutally dismissed the GLP’s attempt to challenge ministers’ use of personal emails to conduct government business, and ordered the GLP to pay £125,000 of the Government’s legal costs.

In October, the High Court dismissed the GLP’s attempt to challenge the award of contracts for Covid antibody tests to the specialist rapid test manufacturer Abingdon Health; once again, the Court not only dismissed the GLP’s judicial review claim in its entirety, but went on to rule that the GLP lacks standing to bring such claims. And, in December, the Court of Appeal dismissed the GLP’s appeal in the ‘ministerial emails’ case, and then the Supreme Court refused the GLP permission to appeal the Court of Appeal’s January 2022 ruling in the Public First case.

(In addition, in March the Court of Appeal refused the GLP permission to bring a judicial review claim in the Pharmaceuticals Direct case, and in October the High Court refused permission to apply for Planning Statutory Review in the Surrey Hills case. On the other hand, in July the High Court allowed the judicial review claim brought by the GLP and others in the Net Zero case.)

Unlike the inconsequential declaratory relief obtained by the GLP in its few court ‘wins’ since 2020 (such as the Transparency case in February 2021), these eight key legal defeats – and in particular the rulings on standing – are existential for the GLP. Because, without the standing to bring such judicial review claims, the GLP has lost both its principal campaign tool and its USP.

No longer able to sprinkle the magic words ‘Hancock’, ‘Cummings’ or ‘Johnson’ in new crowdfunders and begging emails, and unable to bring judicial reviews aimed at key government bad guys, the GLP’s current, largely performative activism simply lacks the kind of appeal needed to sustain a bloated payroll (with an annual salary bill in the region of £1.5 million). The 18 Covid-related crowdfunders launched between April 2020 and January 2022 raked in a total of £2.437 million – an average of £135K each. Eight of them pulled in more than £100K, and two (including the above-mentioned Public First case) amassed more than £400K.

But the eight crowdfunders launched in 2022/23 have so far drummed up just £317,308 in total – an average of £39,664. The two most lucrative to date (Sewage dumping and E2BN & Place Group) garnered just £56,492 (to date) and 56,142 respectively, while one (Racism in schools) failed to raise a penny. And allocating crowdfunded income by the year of the crowdfunder’s launch changes the income chart above to look like this:

Furthermore, while there are more legal defeats and damp squibs in the pipeline (LGB Alliance, Bunzl, trans healthcare, Immensa testing), there are no great legal wins. [Update: as anticipated, on 16 January the High Court dismissed the GLP’s claim in the trans healthcare case.]

In short, the GLP is a busted flush, and it’s all downhill from now on. Jolyon will of course continue to use other people’s money to pursue his many grievances against the “vast swathes of civil society comprised of Potemkin ‘regulatory’ infrastructure whose true purpose is to tell a false tale of a functioning modern state”. And there will be more legal challenges to local planning decisions and the website cookies of right-wing campaign groups. But no newspaper will ever splash (as the Evening Standard did in April 2021) on why the Sunak (or Starmer) Government ‘should fear Jolyon Maugham KC’s Good Law Project’.

On 16 December, the GLP tried to squeeze a few more pounds out of Covid and Boris Johnson by announcing there will be a High Court permission hearing in February to decide whether or not the GLP can bring a second judicial review of the Metropolitan Police’s handling of the Partygate investigation, the first having fizzled out in March after raking in a stonking £100K for the GLP.

But what the GLP have failed to make clear to those they are begging to become a regular donor on the back of this development is that, in his Order granting an oral permission hearing, issued in October, the judge made it clear he was ‘troubled’ both by the weakness of the GLP’s claim, and by their (to his mind) lack of standing to bring such a claim, given that they have “no greater interest than any member of the public”.

In other words, there is a reasonable chance that Jolyon and the GLP are set to get their arses kicked in court, again. But … Boris Johnson! Lockdown-busting parties! BORIS JOHNSON! I imagine the dormant crowdfunder will be re-opened later this month or early in February. Ker-ching! [Update, 23 February: Yesterday, Jolyon and the GLP got their arses kicked in court, again.]

Whatever, thanks to Boris Johnson, Dominic Cummings and the Covid pandemic, Jolyon and the GLP do have piles of donated cash in the bank. And, at the time of writing, it remains to be seen whether direct donations – the GLP’s principal source of income since 2020 – have fallen off as much as crowdfunded donations have in 2022/23. Jolyon and the GLP are still standing. But they’re not lookin’ like true survivors.

Happy New Year!

Update, 5 January: Further evidence of the financial meltdown facing the GLP emerged yesterday, when the political gossip website Guido Fawkes published a Freedom of Information (FoI) response from the Government Legal Department showing that, as of 1 November 2022, the GLP had paid a total of £411K in legal costs to the Government Legal Department since 2017, while the Government Legal Department had paid just £40K of legal costs to the GLP – a net loss to the GLP since 2017 of £371,106.

Update 16 January: And today I received a response from the Government Legal Department to my own FoI request, put in just before Christmas, asking for a breakdown of legal costs paid to and received from the GLP by the Government in each year since 2017 (GLD ref: FOI 296). And, while this appears not to include legal costs paid directly to and received directly from the GLP by government departments other than the Government Legal Department, it paints yet another less than pretty picture, from the GLP’s point of view:

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Good Law Project: Win some lose some

“You win some, you lose some” sang Robbie Williams on his second studio album in 1998. But Jolyon Maugham and his (Not Very) Good Law Project want you to think they win more cases than they lose. So, last week – probably aware that they were about to be given yet another legal kicking by the Court of Appeal – they finally updated the Spreadsheet of Glorious Victories that they first published in June this year.

While the updated spreadsheet covers up to the end of September (the original covered up to the end of March), it adds little to what we already knew. But it claims that, out of 40 legal cases in which “we can say” what the outcome was, the GLP won 18 (45%). Which doesn’t sound too bad, especially when you contrast it – as the GLP do – with “the proportion of judicial review claimants over the last six years who had judgments in their favour in court”, which was 5.2% at its highest (in 2019) and 2.2% at its lowest (in 2021).

However, there are a few things that need to be said about those 18 GLP ‘legal wins’, and the contrasting of the 45% and the 2.2 – 5.2%.

The first thing to say is that one of the 18 ‘legal wins’ claimed by the GLP is the case brought by Gina Miller and Deir Dos Santos in July 2016, based on ideas first put forward by three constitutional law experts in late June 2016 and determined by the High Court and Supreme Court in November 2016 and January 2017 respectively, when the GLP did not even exist (it was not formed until March 2017). So it is somewhat audacious of the GLP to say “we won this case”. My annual appraisal would be less worrying if my boss allowed me to take credit for the past achievements of other policy wonks doing similar work to me.

The second thing to say is that, of the 17 remaining ‘legal wins’, eight cases did not get as far as a court judgment. In three cases the GLP did not even issue a judicial review claim – they hadn’t got beyond sending pre-action protocol correspondence before there happened to be a (positive) change in the Government policy in question. And in the other five cases a judicial review claim was issued, but was withdrawn by the GLP without the case having been fully heard – let alone determined – by a court.

It is, of course, questionable whether the GLP’s pre-action protocol correspondence was a factor – let alone the determining factor – in those three changes in Government policy. As I noted on this blog in June, correlation does not imply causation. The Government’s June 2020 U-turn on extending free school meals through the summer holidays, for example, probably had more to do with Marcus Rashford’s campaign. And its August 2020 U-turn on the A-level standardisation algorithm probably had more to do with the U-turns already made by the Scottish, Northern Irish and Welsh governments. But in any case these eight claimed ‘legal wins’ cannot be likened to cases in which a judicial review claimant obtained a judgment in their favour in court. Apples are not oranges.

The third thing to say is that, of the nine ‘legal wins’ that were decided in court, one was very much not a win for the GLP. As noted on this blog, in February 2022 the GLP used £388,635 of crowdfunded donations to lose a judicial review claim alleging cronyism on the part of government ministers when appointing Dido Harding and others. Because the judges ruled that, while co-claimants the Runnymede Trust were entitled to a nice-to-have but in practical terms near-worthless ‘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”. And the Court ordered the GLP to pay 80% of the Government’s legal costs (provisionally estimated at £360,000). As Ian Hislop might say, if that’s a ‘legal win’, then I’m a banana.

So, leaving aside the Miller case from 2016, that’s eight court judgments in the GLP’s favour, out of 39 legal cases. Which is 20%, not 45%. Furthermore, there are ten cases that the GLP have strangely but conveniently excluded from their denominator (i.e. their ’40 legal cases’) by putting them in their ‘can’t yet say what the outcome is’ category (shaded grey in their spreadsheet), when in fact an outcome is pretty clear (even if that outcome is currently under appeal). It seems outcomes only count when they are the right outcome.

These ten cases include: the judicial review claim in respect of Public First, which the GLP lost in the Court of Appeal in January, and the claim issued in respect of Hanbury that is stayed behind it pending the GLP’s attempt to appeal the ruling in the Supreme Court; the claim issued in respect of a Covid19 public inquiry, which was abandoned by the GLP in June 2021 after permission was refused by the High Court; the claim issued in respect of Pharmaceuticals Direct, in which permission has been refused by the High Court and the Court of Appeal; and the claim issued in respect of the Pannick legal advice to Boris Johnson, which according to the updated spreadsheet has now been abandoned by the GLP. And including these ten cases in the denominator would make it eight court wins out of 49 legal cases. Which is 16%.

And perhaps the last thing to say is that, ultimately, most of the eight court wins were hollow victories. Despite the ‘legal win’ in Wightman, the Article 50 notification never came close to being revoked.[Indeed, in April 2023, Jolyon himself cheerily conceded that the Wightman case “didn’t make any difference”.] And, despite the overturning of the prorogation, we still left the EU. The declaratory relief obtained in the Covid19 contracts transparency case, and in the two VIP lane-related cases of Ayanda and Pestflix, are nice things for Jolyon to put in frames on his wall, but are of negligible value to you, me or anyone else. And the two transgender healthcare ‘legal wins’ don’t count for much, now that the disgraced Tavistock Gender Identity Development Service (GIDS) is (rightly) to be shut down in March.

Put another way, it is highly debatable whether those who have donated at least £10.86 million (and possibly as much as £15 million) to the GLP since 2017 have obtained value for money. But hey, at least Jolyon and the 30+ GLP staff get to live their values.

Whatever, here’s my own, updated Table of Failure & Futility, showing the sum raised by and outcome to date of the GLP’s 52 Crowdjustice crowdfunders since 2017:

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Workers’ rights: are we nearly there yet?

Back in May, as we waited to see whether the Queen’s Speech would include the repeatedly promised Employment Bill, I noted on this blog that the Government had no fewer than 12 outstanding key pledges on workers’ rights, some of which had been outstanding for some time. Seven of the 12 pledges had featured in the December 2019 Conservative manifesto and, as we approach the third anniversary of that general election, now seems a good time to review what progress has been made since May.

Two of the 12 pledges – the red ones in the chart above – have been abandoned. In July, the Government announced that it will not be progressing the pledge, first made in February 2018, to legislate to improve the clarity of the ’employment status’ tests. And BEIS officials have made it very clear that, despite the establishment of an Advisory Board on Pregnancy & Maternity Discrimination in late 2021, the Government will not be producing the Action Plan to make it easier for pregnant women and new mothers to stay in work that it promised in July 2019. Which may or may not be why BEIS expelled Maternity Action from the Advisory Board after just one meeting.

As noted on this blog in October, five of the pledges – the orange ones in the chart – are currently being progressed through Government bills masquerading as Private Members’ Bills (PMBs), introduced by Labour, Liberal Democrat, SNP and Conservative backbench MPs in June. And there is enough time for most if not all of these PMBs to reach the Statute Book before the end of the current parliamentary session in April or May next year: all five have already had their Committee stage, and are set to complete their passage through the House of Commons by early February, at which point they will go to the House of Lords.

However, Ernest Hemingway warned us not to confuse movement with action. There is no guarantee that each of the PMBs will reach the Statute Book – the necessary parliamentary time remains in the gift of ministers, who could pull the plug at any point, should they decide that it would be politically advantageous to them to hold the reforms back as ready-made manifesto commitments for a May 2024 general election. There are already suggestions that, as things stand, Rishi Sunak faces the prospect of going into that general election with “precious little to say”.

Furthermore, while Stuart McDonald’s Neonatal Care (Leave and Pay) Bill would amend the Employment Rights Act 1996 and the Social Security Contributions and Benefits Act 1992 to require the Secretary of State to make Regulations creating a statutory right to paid neonatal leave, and Wendy Chamberlain’s Carer’s Leave Bill would similarly amend the Employment Rights Act 1996 to require the Secretary of State to make Regulations creating a statutory entitlement to unpaid carer’s leave, Dan Jarvis’s Redundancy Protection (Pregnancy and Family Leave) Bill would only give the Secretary of State the power to make Regulations extending the scope of the existing MAPLE Regulation 10 protections. The Secretary of State would remain free to not use that power (or to do so only at a time of his or her choosing).

Since Dan Jarvis’s PMB was introduced in June, it has emerged that Ministers are proposing to include, in the necessary Regulations, a six-week qualifying period for the protection that would be extended to new parents after their return to work from a period of leave. However, this proposal – which would set a worrying policy precedent – has not yet been publicly set out in writing, and the Minister somehow failed to mention it during both the Second Reading and the Committee stage debates.

During the latter debate, on 2 November, Dan Jarvis assured MPs that BEIS are consulting members of the above-mentioned Advisory Board – that is, the Advisory Board from which BEIS expelled Maternity Action – about this qualifying period (and the PMB’s impact assessment, published in August, wrongly implies that at least some such consultation had by then already taken place). However, it is not at all clear why such consultation, on an important point of policy, should be confined to the members of the Advisory Board, and be conducted behind closed doors. But that’s the kind of thing that happens when you’re a backbencher and you introduce a PMB that you didn’t write yourself, and over which you have no control.

A sixth Government bill masquerading as a PMB – Yasmin Qureshi’s Employment Relations (Flexible Working) Bill – would amend the Employment Rights Act 1996 to make a number of welcome but relatively minor reforms of the administrative process underpinning the existing right to request flexible working (such as allowing employees to make two flexible working requests in any 12-month period, instead of the one currently allowed). But it would not make the right to request flexible working a Day One right – as the Government proposed in its September 2021 consultation paper – let alone deliver the Government’s December 2019 manifesto pledge to make flexible working the default. It seems we have to await the Government’s response to the 2021 consultation to learn whether ministers plan to make the right to request a Day One right, and during the PMB’s Second Reading debate on 28 October the minister could say only that the Government will bring forward that response “shortly” (which may or may not be more imminent than ‘in due course’).

As for the other four outstanding pledges, they remain, well, outstanding. Evaluating the Shared Parental Leave scheme remains “an important part of the policymaking process”, according to the Minister, but it is now more than five years since the evaluation was first announced to MPs, and we are still waiting for the evaluation report. Apart from anything else, this means that the 2019 BEIS/DWP Maternity & Paternity Rights Survey – part of a series that has been conducted since the late 1970s, and which was last conducted in 2009/10 – remains under wraps, despite the survey fieldwork having been completed by November 2019. Because, for reasons known only to BEIS ministers, the Survey report cannot be published until the Shared Parental Leave evaluation report is published.

There are no signs of the Government introducing the new right to request a more predictable and stable contract that was first promised in February 2018, despite the Minister confirming as recently as late October that the Government “remains committed” to this pledge. Similarly, there are no signs of any progress on the December 2019 pledge to “make it easier for fathers to take paternity leave”. And there’s been no real news on the promised Single Enforcement Body since June 2021.

Furthermore, these are only the most significant commitments on workers’ rights that the Government has made, and which remain outstanding. For example, on 24 November, a coalition of organisations wrote to business secretary Grant Shapps, urging the Government to act on its March 2022 commitment to remove the ‘family worker exemption’ from the National Minimum Wage Regulations.

In December 2019, the Tories sought to portray themselves as the workers’ party, with a raft of broadly welcome manifesto commitments on workers’ rights. In 2024, they may well want to do so again. So watch this space.

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Good Law Project: Binfire of the vanities

On 1 November, I noted on Twitter that the month in which we celebrate the glorious failure of the Gunpowder Plot was going to be a big one for Jolyon ‘Che’ Maugham and his (Not Very) Good Law Project, what with the resumption – on 7-8 November – of the Tribunal hearing of the nasty, illiberal attack by Mermaids and the GLP on the LGB Alliance, and – on 29-30 November – the High Court hearing of another of their gender woo-woo cases, Trans healthcare. And in the latter case the judge had, in May this year, somewhat hesitantly granted permission to apply for judicial review while noting “the futility of any declaratory remedy” sought by the GLP.

In addition, on 8-9 November, the Court of Appeal would hear the GLP’s appeal against the High Court’s dismissal, in April, of the GLP’s attempt to challenge ministers’ use of personal emails and messaging apps to conduct government business. And, from 10 November, thanks to a handful of large, anonymous and curiously-sized donations to the associated crowdfunder, the GLP would be funding the defence in court of a libel claim brought against Nina Cresswell over allegations she has made on social media, and trying to “establish when victims can rely on a public interest defence”.

And so it proved: November was a big, bad month for the (Not Very) Good Law Project.

Only a die-hard Jolyonista would argue that the two days of legal submissions that concluded the protracted Tribunal hearing of the attack on the LGB Alliance went well for Mermaids and the GLP. And even he/she/they/fae/zir would have to concede that the two-day Court of Appeal hearing of the ‘ministerial emails’ appeal was not the GLP’s finest hour in court. As one observer noted on Twitter: “Textbook poor lawyering: no draft Order, no clear architecture, judges’ concerns not being met. Comes across as very sloppy.”

However, thanks to some heavy promotion by the GLP, over the five days up to and including the Court of Appeal hearing the associated GLP crowdfunder raked in more than £45,000 from some 2,250 new donors, to add to the some £135,000 previously raised from some 5,550 donors. By 4:15 pm on 8 November, when the first day of the hearing came to an end with the Master of the Rolls offering the GLP’s counsel an extra 15 minutes at the start of the second day to “have another go at making [your] case” – the clear implication being that she had so far failed to do so – the total stood at £179,111. And by the time GLP closed the crowdfunder, a few hours after the end of the second day, it had garnered a stonking £180,203 from 7,823 donors.

One has to wonder how much understanding of the legal merits of the GLP’s appeal those 2,250 new donors had when parting with their cash. In particular, you have to wonder how many fully appreciated that, in April, the High Court drove a steamroller back and fore over the GLP’s case, before ordering the GLP to pay £125,000 of the Government’s legal costs. Or that, in October, in the case of Abingdon Health, the GLP was given another kicking by the High Court on the issue of standing.

Yet only the day before the Court of Appeal hearing, the Great Crowdfunder himself was pontificating on Twitter about “the tension between raising money and being straight about a [crowdfunded] case’s legal merits”. Hmmm.

On 22 November, the GLP revealed that its much-hyped legal action against energy regulator Ofgem has fizzled out, on account of new legal advice to the GLP that their claim has no merit. There was never a Crowdjustice crowdfunder for this case, but since 2 September there had been a dedicated GLP donation page (which – shamelessly or incompetently – remains open, so do feel free to “support the fight for fairer energy prices” with your debit or credit card). However, unlike Crowdjustice crowdfunders, this page doesn’t show the running total of donations made, so we’ll never know how much the GLP raked in for this performative act of futility. Unless they tell us, of course. But Jolyon doesn’t really do transparency.

On 25 November, Jolyon’s great buddy Susie Green, CEO of the troubled and troubling Mermaids, had a conscious but abrupt uncoupling from the organisation she had led for six years. In the words of Hadley Freeman, “all the journalists, teachers, editors and activists” – including the “full-time tweeter, part-time QC and occasional fox murderer”- who “endorsed Green’s obviously ludicrous ideas and shouted down anyone who didn’t [now] need to take a long look at their judgement, their motives and themselves.”

While the three GLP crowdfunders for their gender woo-woo cases – the Mermaids/GLP attack on the LGB Alliance, the Trans healthcare challenge and the grandly-named Legal Defence Fund for Transgender Lives – had between them raked in a whopping £318,620 from more than 9,350 donors by 1 November, the cases haven’t been to the liking of every member of the GLP’s base. On 2 November, one (now former) GLP supporter stated on Twitter: “I stupidly set up a direct debit to [GLP] for Covid contracts scandal. Had no idea about the nature of other cases in the background. Direct debit now cancelled and money being diverted to LGB Alliance. GLP take note. I can guarantee that most of your money comes from women.”

Indeed, the LGB Alliance is not the only organisation that Jolyon and the GLP have tried to punish for wrongthink on gender woo-woo. Those “other cases in the background” include an attempt in June this year by the GLP and Stonewall to persuade the UN body that oversees national human rights institutions to downgrade the Equality & Human Rights Commission. It’s not at all clear how that would have benefitted “marginalised and excluded groups throughout the UK”, but fortunately this was just one more hubristic GLP campaign that ended in failure.

On 29 November – the first day of the High Court hearing of the Trans healthcare case – the judge appeared to echo the concern of his judicial colleague in May about the apparent futility of the litigation, noting that the declaratory relief sought by the claimants would “not advance the position of the claimants at all, as it would not put the claimants higher on the waiting list”. In other words, while the litigation may result in yet another near-worthless bit of paper that Jolyon can wave around, it seems unlikely to make any material difference to trans people seeking NHS treatment. [Update: on 16 January the High Court dismissed the GLP’s claim.]

Maybe December will be a better month for the GLP. And November wasn’t all bad news for the GLP: their open Crowdjustice crowdfunders raked in a cool £98,920. That total includes the above-mentioned £45,423 for the ‘ministerial emails’ appeal, £10,457 for the relatively new ‘sewage dumping’ case, and a stonking £32,423 for the latest money-spinner, Tufton Street, which launched on 25 November.

[Update, 2 December: Well, December didn’t get off to a great start for the GLP, as yesterday their “textbook poor lawyering” in the ‘ministerial emails’ case resulted in the Court of Appeal dismissing their appeal and claim for judicial review. And it is clear from the judgment that the three judges were also not terribly impressed by the GLP’s lawyering, and in particular the GLP’s failure to make clear what relief it was seeking from the Court: “The fact that a claimant is unable or unwilling to particularise the relief that they seek, may be an indication that the claim should not be pursued.” Ouch.

And earlier today the Charity Commission announced that it has opened a statutory inquiry into Mermaids, due to “newly identified issues about the charity’s governance and management”. The words ‘stones’, ‘glass’ and ‘houses’ come to mind. Maybe it wasn’t such a good idea for Mermaids to accept that “informal advice on law and comms” from Jolyon.]

Anyway, here’s my updated Table of Failure and Futility, showing the sum raised by and outcome to date of the GLP’s 52 Crowdjustice crowdfunders since 2017. And, if you want, you can compare it against the GLP’s own Spreadsheet of Glorious Victories, which on 29 November they (finally) updated to the end of September. I’ll be taking a closer look at that Spreadsheet on this blog in due course.

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