“We didn’t lose. At a deeply technical level we lost. At every substantive level we won.“
So said Jolyon Maugham KC in February 2022, in response to a High Court judge ruling, somewhat unambiguously, that “the claim brought by the Good Law Project fails in its entirety”. And now, it seems, the (Not Very) Good Law Project has lost – but only at a deeply technical level – again.
On 17 April, the GLP announced on their news pages, and in an update to their crowdfunder in support of proposed legal action against the regulator Ofcom by ‘media expert’ Professor Julian Petley, in relation to Ofcom’s regulation of GB News:
Ofcom backs down in face of broadcasting bias challenge … Under threat of legal action, Ofcom has abandoned a two-tier approach to impartiality touted by its CEO in March 2024.
Launched on 26 March, the brief (240-word) crowdfunder had included only minimal information about the basis for the proposed legal challenge, and no indication at all of its prospects of success. It did, however, include a link to the GLP’s 15-page letter before claim, sent to Ofcom on 22 March. And, from this, it was clear that the proposed legal challenge was based on the GLP and Professor Petley’s interpretation of remarks made by Ofcom’s chief executive in late February 2024 (and reported in early March).
On the basis of those remarks, the GLP and Professor Petley had concluded that Ofcom “holds GB News to a lower standard because of its smaller audience”, and that this “two-tier approach to impartiality” is in breach of both Ofcom’s own Broadcasting Code, and the Communications Act 2003.
Despite – or, arguably, because of – this meagre and (clearly) one-sided provision of information about the proposed legal challenge, the crowdfunder received a stonking £19,592 from 1,116 donors within 48 hours. And, by the morning of 17 April, it had received a total of £29,607 from 1,560 donors (an average donation of £18.98).
However, both the GLP’s news announcement and their update to the crowdfunder on 17 April include a link to Ofcom’s response, dated 12 April, to the GLP’s letter before claim. And it is clear from this that, far from ‘backing down’, Ofcom has robustly denied ever having a “two-tier approach to impartiality”. Inter alia, Ofcom’s response letter states:
“We consider that the proposed claim is based on a false premise and is entirely misconceived. It discloses no arguable grounds for judicial review. Ofcom will contest any application brought on those grounds in full and will seek its costs of so doing.
The brief selective comments [by Ofcom’s chief executive] you rely upon in your letter [before claim] were clearly not intended to be, and should not be taken as, an unpublished policy position of Ofcom. For the avoidance of doubt there is no such unpublished policy and your understanding from these remarks that Ofcom has such a policy is incorrect.
Your client [i.e. Professor Petley] incorrectly construes the comments made by Ofcom’s Chief Executive … Ofcom does not have any form of published or unpublished policy containing what you describe as ‘Lower Standards for Smaller or Non-Public Service Broadcasters Approach’. Therefore, all three grounds [of your proposed judicial review] are based on a false premise, are entirely misconceived and without merit.
Finally, we note that, while you have informed us that your client is Professor Julian Petley, the Good Law Project’s website currently states that the ‘first step’ in legal proceedings has been taken against Ofcom, and seeks financial donations to support ‘our legal action’. As you will be aware, the letter before claim is a step required to be taken prior to legal proceedings, with the express purpose of trying to settle the issues without proceedings.
We are concerned that you are raising significant funds from the public on the basis of a misconceived claim. We trust that your client will not continue to incur legal costs, funded by public donations or otherwise, in connection with a proposed action which has no basis. For the avoidance of doubt, Ofcom will defend any application in full and will seek to recover its legal costs of doing so.”
As the GLP appear to concede in their 17 April news announcement: “No two-tier approach then”. But you don’t have to be a King’s Counsel to conclude from all this that Ofcom have not ‘backed down’. As one lawyer noted on X (formerly Twitter): “I think this is possibly [the GLP’s] most disgracefully disingenuous attempt to claim a ‘win’, in a long line of such disgracefully disingenuous attempts.”
Whatever, between 26 March and 17 April, the GLP and Professor Petley crowdfunded £29,607 from 1,560 people for a somewhat speculative legal challenge that, it turns out, appears to have been entirely misconceived and, accordingly, to have had no prospect of success. Prior to 17 April, potential donors – and the 1,560 actual donors – were simply not given the material information they needed to make an informed decision about whether to donate to the crowdfunder (and, if so, how much).
Indeed, the fact that, since 17 April, only three people have donated a total of £8 to the crowdfunder tends to suggest that, had Jolyon and the GLP waited until they were in a position to share Ofcom’s letter of response before launching the crowdfunder, many of the 1,560 people who donated an average of £18.98 would not have donated at all, or would have donated less than they did. (And one of those three people was me, donating a very generous £1 on 18 April simply to test whether the crowdfunder truly is still open to new donations).
And you don’t have to be a cynical, paid Tory troll like me to take that view. Way back in November 2017, no less a person than Jolyon himself explained that this is exactly why he tends to launch his many crowdfunders – an industrial-scale 69 of them since March 2017 – after sending a letter before claim, but before getting the proposed defendant’s response to that letter before claim.
Alternatively, of course, people have not been donating to the crowdfunder since 17 April because they have been misled into thinking that, with Ofcom having ‘backed down’, the GLP have won. At every substantive level. In which case, it’s just a shame (for the GLP) that ‘winning and losing’ is a silly metric.
Either way, to my mind the GLP’s Ofcom/GB News crowdfunder, and the actions of Jolyon, the GLP and Professor Petley in promoting it, are in breach of both the GLP’s own much touted values and Rule 3.3 of the Non-Broadcast Code of Advertising Practice (the CAP Code) produced by the Committee of Advertising Practice, the sibling organisation of the Advertising Standards Authority. Rule 3.3 provides that:
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product.
I have therefore made a formal complaint to the Advertising Standards Authority against the GLP and Professor Petley (ASA ref: A24-1242970).
In January 2023, at the end of a lengthy blog post cataloguing the existential legal defeats that had made 2022 an annus horribilis for Jolyon Maugham KC and his (Not Very) Good Law Project, I suggested “the GLP is a busted flush, and it’s all downhill from now on”. But I also noted that, in the meantime, Jolyon will nevertheless continue to use other people’s money to pursue his many grievances against [what he calls] 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 I think it is fair to say that the biggest of those many grievances is the one that Jolyon has against the Charity Commission.
However, as the satirist and editor of Punch magazine Alan Coren once said: “To have a grievance is to have a purpose in life”.
Jolyon’s current true purpose in life was evident by 7 May 2021, when – just two weeks after the Charity Commission granted charitable status to the Tufton Street-based LGB Alliance – he announced on Twitter (now X) that “we’ve found a very effective way to challenge the baffling decision of the Charity Commission to subsidise the activities of a transphobic hate group with your taxes.” The following month, the GLP launched a crowdfunder in support of an appeal against the Commission’s decision, by the controversial transgender youth charity Mermaids, in the First-Tier Tribunal. And in December 2021, the Tribunal agreed to hear arguments about both Mermaids’ ‘standing’ to bring the appeal and the merits of the Commission’s decision at a single hearing.
Meanwhile, in September 2021 the GLP had launched a crowdfunder in support of a proposed judicial review of the Government’s conduct of the selection and appointment of a new Chair of the Charity Commission. The crowdfunder quickly raked in £84,552 from 3,726 donors, but in February 2022 the judicial review claim was abandoned by the GLP, without having been heard in court, in what the GLP called a ‘drop hands’ deal with then Culture Secretary Nadine Dorries.
The First-Tier Tribunal eventually heard the appeal in Mermaids v Charity Commission & LGB Alliance over seven days in September and November 2022, by which time the associated GLP crowdfunder had raked in £83,692. But the following month the Charity Commission opened a statutory inquiry into Mermaids, after identifying “concerns about [the charity’s] governance and management”. And in July 2023 the First-Tier Tribunal dismissed the appeal. Ouch.
Meantime, in October 2022 the GLP-owned law firm Good Law Practice, acting for Clive Lewis MP, Caroline Lucas MP and Layla Moran MP, had written to the Charity Commission alleging “mismanagement or breaches of duty” by the trustees of the Tufton Street-based charity Global Warming Policy Forum. And the following month the GLP launched a crowdfunder in support of this and other actions aimed at “unmasking [the Tufton Street-based] organisations and challenging their abuse of charity status … we want to degrade the whole ugly Tufton Street infrastructure.”
Despite – or perhaps because of – Labour MP Clive Lewis being best known for making “offensive and unacceptable” remarks at a public event in Brighton and mocking suicide in the House of Commons, and pansexual Liberal Democrat MP Layla Moran being best known for telling MPs she can see the gendered souls of trans-identifying people, the crowdfunder raked in more than £74,000 within three months. And, despite the crowdfunder not having been updated since February 2023, that sum has since risen to £76,150, including £80 donated this month.
Fast-forwarding to the present, on 4 March 2024 the GLP announced on their website and on social media that they are “preparing to take legal action” against the Charity Commission if the latter fails to “investigate whether GambleAware is breaking charity law by failing in [its] duties to provide unbiased information”. The announcement included a link to the Good Law Practice’s 20-page letter of complaint to the Charity Commission, and sought direct donations to the GLP, but as of 15 April there is no associated crowdfunder, and no news on the threatened legal action.
Just ten days later, on 14 March the GLP announced on their website and on social media that they have “teamed up with a cross-party group of [four] politicians” – Sian Berry (of the Green Party), Clive Lewis MP, Layla Moran MP and Alyn Smith MP (of the SNP) – and former Charity Commission board member Andrew Purkis, to make a formal complaint to the Charity Commission against the Institute of Economic Affairs (IEA) think tank. The 19-page complaint letter, sent by the Good Law Practice on 13 March, alleged that “the trustees of the IEA are failing to comply with the duties applicable to charities in relation to (a) the provision of education, and (b) political activity”, and called on the Charity Commission to open a statutory inquiry in respect of the IEA. However, on 25 March the Charity Commission dismissed the complaint. Ouch again.
While it remains entirely unclear how the £76,150 raked in by the GLP’s (still open) Tufton Street crowdfunder launched in November 2022 has been spent, and how much – if any – of that sum remains unspent, on 5 April the GLP launched a new crowdfunder, with an initial target of £40,000, in support of proposed legal action against the Charity Commission in relation to its handling of the October 2022 complaint against the Global Warming Policy Foundation by Clive Lewis MP, Caroline Lucas MP and Layla Moran MP – that is, one of the actions supposedly funded by the November 2022 Tufton Street crowdfunder.
Despite the brief (300-word) crowdfunder stating “we’re taking the first step in the legal process to challenge the [Charity Commission] over its failure to act”, and despite Jolyon Maugham having recently asserted “we always publish our Pre-Action Protocol letter [before claim] when we crowdfund”, the new crowdfunder did not include a link to the implied ‘letter before claim’. So it was unclear whether the proposed legal challenge was to be a charity-law based appeal in the First-Tier Tribunal (as with Mermaids v Charity Commission & LGB Alliance), or a judicial review claim in the High Court. And there was no indication of the legal basis for the challenge, its prospects of success, or what might ultimately be achieved.
Accordingly, contrary to Rule 3 of the Code of Advertising Practice, the somewhat hyperbolic crowdfunder text did not provide the material information that donors needed to make an informed decision about whether to donate (and, if so, how much). It simply made the emotive and somewhat sweeping assertion that “it’s time to hold the Charity Commission to account for failing to do its duties”.
Only late in the evening of 5 April – by which time the crowdfunder had already received some £2,500 from more than 100 donors – did the GLP add a link to their ‘letter before claim’ to the Charity Commission. From this – but only from this – it is clear that the proposed legal challenge is a judicial review claim in the High Court, with the proposed claimants being the three MPs. Significantly, perhaps, in February 2021 the High Court ruled that Caroline Lucas MP and Layla Moran MP did not have standing to bring a judicial review claim alongside the GLP, in a case for which the GLP crowdfunded almost £205,000 (only to achieve very little). But potential donors would not know this from the crowdfunder or letter before claim.
Whatever, it seems the diminishing band of midwits happy to throw their money at the GLP – the average number of donors to GLP crowdfunders has fallen from 7,640 in late 2020, and 3,260 in mid-2021, to just 1,000 in the first three months of 2024 – do not share Jolyon’s puerile, zealous and largely unproductive grievance against the Charity Commission.
As can be seen from the following chart, while the GLP’s Ofcom/GB Newscrowdfunder and Victoria McCloud/Supreme Courtcrowdfunder – launched on 26 and 28 March respectively – each raked in almost £15,000 within 24 hours, since 5 April the Charity Commission/GWPF crowdfunder has struggled to raise much more than a quarter of that sum, and as of 15 April stands at just £3,780 from 173 donors.
Maybe Jolyon needs to follow the example of Caroline Lucas MP, who is standing down at the coming General Election to spend more time with her England flags, and find a new purpose in life.
Update, 23 April: As if proof were needed of the lack of nuance in Jolyon’s approach towards the Charity Commission, on 18 April he posted on X (formerly Twitter) a screenshot of DCMS minister Stuart Andrew’s answer of 15 April to a parliamentary question tabled by Labour’s Rupa Huq MP, about the GLP’s complaint to the Charity Commission against GambleAware (see above). In his answer to the PQ, the minister states: “The Charity Commission is an independent, non-ministerial government department. As such, it is not appropriate for the Government to comment on the Commission’s approach to handling complaints it receives in its regulatory capacity.” And, in his post on X, Jolyon states: “In fact, the Charity Commission is about as independent of Government as Stuart Andrew is.”
In their letter before claim to the Charity Commission, dated 4 April, the GLP requested a response “within 14 days, so by 18 April”, and it would be unusual for the Commission not to have complied with that request. However, on 21 April, the GLP promoted the Charity Commission/GPWF crowdfunder on X (formerly Twitter), without indicating whether a response has been received from the Commission, and therefore without explaining the contents of and/or linking to any response that has been received.
Along with the GLP’s initial failure to include a link to their letter before claim in the crowdfunder text (and/or to explain the nature of the proposed legal challenge in the text), this promotion of the crowdfunder on X appears to be a straightforward breach of Rule 3.3 of the Non-Broadcast Code of Advertising Practice (the CAP Code) produced by the Committee of Advertising Practice, the sibling organisation of the Advertising Standards Authority. Rule 3.3 provides that:
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product.
Without knowing whether or not the Charity Commission responded to the GLP’s letter before claim within the deadline of 18 April, and therefore without knowing the nature of any such response, a person viewing the GLP’s 21 April post on X and clicking through to the Charity Commission/GWPF crowdfunder would not have the material information they need to make an informed decision about whether or not to donate to the crowdfunder (and, if so, how much). And, since 21 April, that post has been viewed more than 20,000 times.
For example, it is perfectly possible that, in light of the Charity Commission’s response, one or more of the three MPs and/or the GLP may decide that they should not continue with the proposed legal challenge. This is what appears to have happened in both the GLP’s General Election: Data case, with the proposed legal challenge seemingly abandoned by the GLP after receipt (on 1 February) of the Conservative Party’s robust response to the GLP’s letter before claim, and their Ofcom/GB News case, with the proposed legal challenge seemingly abandoned by the GLP after receipt (on 12 April) of Ofcom’s similarly dismissive response. And, as already noted, it seems unlikely that the Charity Commission had not responded by 21 April, given the deadline of 18 April.
Yesterday, on X, I asked the GLP and the three MPs to confirm whether or not they have received a response to their letter before claim from the Charity Commission, but they have not replied.
I have therefore made a formal complaint to the Advertising Standards Authority against the GLP, Clive Lewis MP, Caroline Lucas MP and Layla Moran MP (ASA ref: A24-1242880).
In February, I questioned whether Labour shadow ministers have any idea how to implement their near totemic pledge – set out in their New Deal for Working People – to “ban zero-hours contracts and contracts without a minimum number of guaranteed hours”. And in doing so, I noted that, in a recent Financial Times column pushing back against media reports that Keir Starmer is under pressure to water down the laudably ambitious New Deal document ahead of the approaching General Election, deputy leader Angela Rayner had possibly qualified the pledge by stating that Labour would ban only “exploitative” zero-hours contracts. But how this would be done remained a mystery.
Then, early last week, the eagle-eyed Darren Newman reported that, when delivering her Mais Lecture at the Bayes Business School on 19 March, shadow chancellor Rachel Reeves had not only mirrored Rayner’s apparent qualification of the pledge, but had gone on to explain how this qualified ‘ban’ would be implemented:
We will ban exploitative zero hours contracts, by giving all workers the right to a contract that reflects the number of hours they regularly work, based on a twelve-week reference period.
As Darren noted, “the suggestion here is that the right to a regular contract where regular hours have been worked for 12 weeks [pledged in the New Deal document] is not a separate right in addition to the ban on zero-hours contracts – it is the method by which the ban on ‘exploitative’ zero-hours contracts is to be accomplished”. And, in a subsequent interview on Sky News, Labour Party chair Anneliese Dodds appeared to confirm what would amount to a significant policy shift.
Darren concluded that “Labour needs to think about how to convert slogans into legislation that actually works, [and] perhaps what Rachel Reeves said is part of that process. On the other hand, it might have been a typo.”
Well, we didn’t have to wait long for confirmation that it was not a typo. On Thursday morning, during an extended interview by the BBC R4 Today programme’s Nick Robinson, ahead of Labour’s launch of their campaign for the local elections on 2 May later that day, Angela Rayner was (eventually) very clear:
Nick Robinson (at 2:18:21): You used to say you’d ban all zero-hours contracts. You don’t any more, do you?
Angela Rayner: Well, we will ban zero-hours contracts …
Nick R: But not all of them.
Angela R: Well, there’s different ways you can do it, you can aggregate over 12 weeks, we’re in consultation and we’re working with the sectors including with the workers that says we do not want exploitative contracts where people are working regular hours but are [on] a zero-hours contract.
Nick R: So, people who want to work [on a zero-hours contract] will still be able to work [on a zero-hours contract]. A change of approach?
Angela R: If people are working a flexible contract, their contract will be be able to specify that, but what we won’t have …
Nick R: So, you won’t ban zero-hours contracts?
Angela R: Let me be clear, Nick. What we won’t have is people working regular hours who are given a zero-hours contract and no security. We’re calling time on that and I think most people recognise that.
Nick R: Understood.
Angela R: You can’t get a mortgage, you can’t get credit, if you’ve got a contract that doesn’t give you any hours and it doesn’t work for people.
So, it is now very clear: the incoming Labour government’s Bill to implement the New Deal for Working People will not include a ban on “zero-hours contracts and contracts without a minimum number of guaranteed hours”. It may include the New Deal‘s new right to a regular contract where regular hours have been worked for 12 weeks (one of several recommendations by the Low Pay Commission in a December 2018 report on one-sided flexibility), but that would not amount to a ban on exploitative zero-hours contracts, and would most likely benefit only a very small proportion of the 1.1 million workers currently on a zero-hours contract.
In short, the headline policy is a sham, and always was a sham. All that is actually on the table is a new right to seek a bit more ‘security’, but only for those workers who already have the rather significant security, in this context, of working regular (and therefore predictable) hours over a sustained period. And, realistically, a great many of those workers will be content enough with that working arrangement to not want to exercise the new right. But there is no such protection for those who need it most – the far greater number of workers who are being exploited by being given only irregular and unpredictable hours by a rogue employer.
Furthermore, as Darren Newman noted in his blog of 19 March, there is a very real risk that telling employers that, if they give a worker regular hours for 12 weeks, then they will have to write that into the worker’s contract will create a perverse incentive for such employers to offer only irregular and unpredictable hours. Doh!
Whatever, politics aside, this is no big deal. Not for the first time, Labour in opposition have made policy by slogan, without stopping to think how they might turn the slogan into law once in government. So, there never was going to be a ‘ban on zero-hours contracts’. But, as I have said many, many times over the past decade, ever since people in Labour first started talking about banning zero-hours contracts, the misuse of zero-hours contracts by rogue employers is best seen as a symptom, not the disease – which is the ability of rogue employers to exploit vulnerable workers with near impunity, including by the misuse and abuse of flexible working arrangements. Indeed, as the Low Pay Commission noted in its December 2018 report, “the problems associated with one-sided flexibility go wider than the phenomenon of zero-hours contracts”.
In terms of treating the underlying disease, there are far more important pledges in Labour’s New Deal for Working People than the (never practicable) ‘banning’ of zero-hours contracts, not least the rarely mentioned pledge – which was also in Labour’s 2019 general election manifesto – to “establish and properly fund a single enforcement body to enforce workers’ rights” (see page 11).
As previously noted on this blog, at the 2019 general election the Conservatives (and even the Liberal Democrats) similarly pledged to create such a new enforcement body, but Boris Johnson never found time for his repeatedly promised Employment Bill, and Liz Truss and Rishi Sunak … well, you know that story. We’ll just have to hope that the coming Labour government sticks to its word on that pledge, at least.
Since Friday, there’s been some argy-bargy between MPs over which party – the Conservatives or Labour – was responsible for “talking out” an attempt by the shortest-serving Prime Minister in history, Liz Truss, to progress her Private Members’ Bill (PMB) to clarify the meaning of “sex” in the Equality Act 2010, stop the social transitioning of children in schools, and ban healthcare providers from prescribing puberty blockers and cross-sex hormones to anyone under 18 years old.
However, after 12 Conservative and nine Labour MPs unnecessarily spent almost four hours debating Saxby’s Bill, despite the Bill already having the enthusiastic support of both the Government and the Labour Opposition, there wasn’t even time to complete the Second Reading of Champion’s Bill by 2:30pm. So Truss’s Bill will now fall to the bottom of the (long) priority list of PMBs to be debated on future PMB Fridays, with zero chance of becoming law.
In truth, Truss’s Bill never had much, if any, chance of becoming law, as last November Truss had come only 18th in the annual ballot that gives MPs the chance to be one of the first 20 MPs to introduce a PMB (out of the more than 400 MPs who entered the ballot), whereas Saxby had come 6th, and Champion had come 12th. Only the top seven MPs in the ballot are guaranteed a full Second Reading debate on their PMB, and without Government support only the top 10-15 PMBs have any realistic chance of becoming law. (Last year, 16 PMBs became law, but many of these were a Government hand-out Bill masquerading as a PMB.)
But that didn’t stop Tory MP Sally-Ann Hart accusing Labour of “talking out” Truss’s Bill, saying Labour has “no interest in safeguarding children against extreme trans ideology”. And it didn’t stop Labour’s Sarah Champion posting a short film on social media in which she accused government ministers of getting Tory MPs to “talk and talk and talk and talk and talk” to prevent her own Bill from progressing. To which Tory MP Jackie Doyle-Price responded: “Come off it, Sarah, you know full well it was your benches going long to prevent any discussion of Liz Truss’s Bill”. And then Sarah Champion hit back with: “Jackie, check Hansard x”.
So, who is right? Well, I checked the Hansard record of Friday’s debates and, as the following chart shows, in the four-hour debate on Selaine Saxby’s Animal Welfare Bill, 12 Tory MPs spoke for a total of 99 minutes (an average of 8m 15s), and nine Labour MPs spoke for a total of 136 minutes (an average of 11m 20s). And, of the 31 (short) interventions, 24 were by a Labour MP, and seven by a Tory MP.
The longest speech (34 minutes) was by Labour shadow minister Steve Reed, while three other Labour MPs – Ashley Dalton, Seema Malhotra and Maria Eagle – collectively spoke for almost an hour. And, as well as making a four-minute speech, Sarah Champion made four interventions, including one in which she used up precious time to tell MPs that her brother once had a ferret called Oscar:
Then, in the (curtailed) debate on Sarah Champion’s Bill that followed, five Labour MPs spoke for a total of 57 minutes (an average of 11m 24s), and one Tory MP spoke for two minutes. Of the seven interventions, four were by a Labour MP, and three by a Tory MP. And, at the conclusion of the debate, one Tory MP made a point of order about Labour MPs ‘talking out’ Truss’s Bill.
So, overall, 13 Tory MPs talked and talked for a total of 101 minutes (that is, 34% of Friday’s debating), while 14 Labour MPs talked and talked and talked and talked for a total of 193 minutes (66% of Friday’s debating). Because the fact of the matter is that, for different reasons, neither the Government nor the Labour Opposition wanted MPs to debate Toxic Truss’s PMB. Government ministers such as Kemi Badenoch want to keep some or all of the measures in Truss’s PMB back as manifesto pledges in the approaching General Election (or for their own Tory leadership campaigns), while Labour shadow ministers are all over the place on the issue and would just like to keep their heads where they’ve had them for the last few years: buried deep in the sand.
In January, I noted on this blog that – just like one of the RAF’s bombers in 1942 and one of the Natural History Museum’s dinosaur skeletons in 1975 – one of the (Not Very) Good Law Project’s much-hyped and repeatedly promised legal challenges, launched in April 2023, had gone missing.
A few weeks later, the GLP found that legal challenge – against Voter ID rules – down the back of their sofa and, at the last possible moment, a laughably weak judicial review claim was filed with the High Court.
It remains to be seen whether that court claim will be heard ahead of the approaching General Election – that being the repeatedly promised course of action for which the associated GLP crowdfunder has raked in almost £60,000 since April 2023. But now another crowdfunded GLP legal challenge has gone missing.
Maugham v Conservative Party
Launched on 22 January 2024 in support of proposed legal action against the Conservative Party for alleged breaches of data protection rules, the GLP’s General Election: Datacrowdfunder raked in more than £25,000 within 48 hours, by revealing that a specialist law firm acting for Jolyon Maugham had sent a ‘letter before claim’ to the Conservative Party on 19 January, and by promising “a broad campaign to protect voters’ data rights” in the run-up to the approaching General Election:
Between now and the [General] Election we will be keeping an eye on how political parties [sic] are using your data – we have further actions already planned. We’ll be defending your data rights both through litigation and through reporting on bad practice. Anything you can give to support our work will help us shine a light on these shady campaigning schemes and put us all back in control of our democracy.
On 31 January, numpty Labour MP Dawn Butler raised the matter of Maugham’s ‘letter before claim’ to the Conservative Party during Prime Minister’s Questions, but Butler’s mention of the GLP simply generated guffaws of laughter from MPs. And later that day, in a ‘case update’ posted on their news pages (and subsequently amended – see below), the GLP falsely stated “We’re already challenging the Tories in court [sic] over this flagrant breach of our data rights. But this goes far beyond the Conservatives – no political party is above the law.” In fact, at that point all that Jolyon Maugham/the GLP had done was send a ‘letter before claim’ to the Conservative Party. And, under the Pre-Action Protocol for Media & Communications Claims, the very purpose of such letters before claim is to establish whether court proceedings can be avoided.
Extract from the misleading General Election: Data ‘case update’ posted on the GLP’s news pages on 31 January, corrected by deletion of the two words “in court” on 11 March (see below)
On 2 February, by which time the crowdfunder had raised £30,400, the GLP announced on their news pages and on social media that the Conservative Party had responded to Maugham’s letter before claim’, but “we can’t tell you what they say” as the response is “confidential” and “the intellectual property of the Conservative Party”. The GLP indicated they would “take advice from our lawyers, and report back promptly”, but later that day Dawn Butler posted on social media: “Well I can read the letter out in full on the floor of the House and there is nothing they will be able to do about it so … watch this space!”
As noted on this blog, on 6 February I submitted a complaint about the crowdfunder to the Advertising Standards Authority (ASA) and Committee of Advertising Practice (CAP), as it appeared to me to be in breach of Rule 3.3 of the CAP Code of Advertising Practice. From its launch on 22 January, the crowdfunder had stated “Most donors donate £29 or more”, when in fact (as I had noted on social media on 26 January) the average (mean) donation to the crowdfunder was just £18.45. This appeared to me to be an attempt to misleadingly solicit larger donations than donors might otherwise make. And, on or about 5 February, after I had asked Stewart Wood – the Labour Party peer and GLP board member – to comment, the GLP effectively conceded my point by revising the crowdfunder to state: “Most donors donate £18.40 or more”.
The GLP falls for the old ‘Don’t publish this letter!’ trick
Meanwhile, on 5 February the GLP had announced on their news pages and on social media that “we have informed the [Conservative Party] that we will be publishing their response this week. We’re giving them fair warning: if they really think their letter is ‘confidential’ and ‘the intellectual property of the Conservative Party’ then they can apply for an injunction”. And on 10 February the GLP published the response (though only on their news pages, not on the crowdfunder page).
Reading the Conservative Party’s response, it’s hard not to conclude that the aim of telling Jolyon Maugham and the GLP not to publish the response was to ensure that Maugham and the GLP published the response. Because it’s a revealing and somewhat amusing demolition of Maugham’s puerile over-excitement, and his self-entitled approach to the courts and legal processes:
We were surprised to receive a ‘letter before action’ from you on behalf of [Jolyon Maugham] as there has been no previous communication from you or [Jolyon Maugham] about the concerns raised in your letter.
Further more, we are still in the process of administering [Jolyon Maugham’s] subject access request and many of the points you make are either based on [Jolyon Maugham’s] assumptions (many of which are incorrect) or reserve rights to add more things to your ‘claim’ once [he] receives the subject access response.
In all of these circumstances, your letter before action is, at best, premature and that has made it difficult to assess [Jolyon Maugham’s] proposed case against us. Nevertheless, we have tried to work with the information you have provided to prepare this response in line with the Pre-action Protocol for Media & Communications Claims.
Whilst we expect that you are familiar with the Protocol and its aims, it is evident that [Jolyon Maugham] is not, given his post on “X” [on 23 January] in which he suggests there is an active case against us, which is untrue, and also explains there is an active litigation strategy and seeks support for it. We presume that you have seen the post:
We trust that, if you have not done so already, you will explain to [Jolyon Maugham] the aims of the Protocol which are as follows, as well as the requirement for him to comply with it:
In addition, you will be familiar with the proportionality requirements of the Protocol which, again, we trust you have explained or will explain to [Jolyon Maugham]:
The action taken so far, and [Jolyon Maugham’s] public pronouncements (including his publication of your letter before action in a link on the Crowdfunding page of the Good Law Project website), are clearly disproportionate to the nature and alleged ‘gravity’ (which we dispute in any event), and he is clearly not seeking to settle “the dispute” without proceedings. It is unreasonable for him to invoke the Protocol whilst himself disregarding it. We remind [Jolyon Maugham] that he voluntarily completed our Tax Calculator, and that he selected the option on the Tax Calculator page to receive marketing emails.
We reserve our rights to bring the points we make above to the attention of the courts in any submissions on costs under Civil Procedure Rule 44.4.
And the response concludes:
We urge [Jolyon Maugham] to comply with the Protocol and discontinue this litigious process to avoid wasted and unnecessary costs for both parties and to deal with his concerns and exercise of his data subject rights in direct communication with us. If he or you institute any legal proceedings against us in this matter, we will make an application to the court for security for costs and will raise [Jolyon Maugham’s] non-compliance with the Protocol in any proceedings.
Ouch. And since then, the GLP have said no more about any legal action against the Conservative Party, about stopping other political parties “misusing your data”, or “a broad campaign to protect voters’ data rights” in the run-up to the General Election – which many politicians and commentators expect to be called before the end of this month. Along with the “further actions already planned”, Maugham v ConservativeParty has simply gone missing.
Don’t tell the donors!
Not that you’d know this from the associated GLP crowdfunder. The only update to the crowdfunder page, posted on 24 January, simply notes that, with the crowdfunder having reached its initial £25,000 target, the target has been raised to £50,000. There is no update about (let alone a link to) the Conservative Party’s robust and dismissive response of 1 February to Jolyon Maugham’s silly ‘letter before claim’, and no news about the “further actions already planned”. Yet the crowdfunder remains open and, having raised £1,483 from 99 donors since 1 February, now stands at £31,763.
In short, a visitor to the GLP’s General Election: Data crowdfunding page today would not have the material information that they need to make an informed decision about whether or not to donate to the crowdfunder (and, if so, how much). And the 99 people who have donated an average of £14.98 since 1 February also did not have that material information.
Accordingly, I have renewed/updated my complaint about the GLP’s General Election: Data crowdfunding page to the ASA/CAP.
The GLP admits to being less than perfect. Only a little bit less, though.
On 11 March, in a two-post thread posted on X (formerly Twitter), the GLP admitted making false claims about this General Election: Data campaign, and also their Voter ID campaign, being “in court”:
We’re aware that, in one of our news articles, we talked of a legal campaign being “in court” when it is not, yet, in court. Mistakes do happen but this is the second time we’ve made this one, so we’re going to pick it up with the whole Good Law Project team.
We’ll always try to do better – and we’ll say when we fall below the standards we set for ourselves. We’ve also corrected the [news article of 31 January].
The news article of 31 January (see screenshot above) has indeed been corrected, by removal of the words “in court”. However, as I noted on X in response earlier today, this slippery mea culpa and correction by the GLP does not begin to address the fact that large sums of money were donated to two GLP crowdfunders while the now corrected and other false claims about the two associated campaigns being ‘in court’ were live on the GLP’s website.
As already set out at length on this blog earlier this month, in the GLP’s Voter ID campaign, some 1,400 people donated a total of £23,600 over the five days – 13-18 February – when the misleading update about legal proceedings having been issued was live on the associated crowdfunder page. Yet, since the update was replaced on 18 February, only 47 people have donated.
Similarly, with the General Election: Data campaign, from the time of Jolyon’s tweet early on 23 January until the morning of 1 February, 849 people donated a total of £16,846 to the associated crowdfunder. And between 1 February and last night’s correction of the GLP blog post, another 99 people donated a further £1,480.
As more than one person has noted on X today, it’s not easy to see the difference between the misleading solicitation of these donated sums by the GLP, and the criminal offence (under the Fraud Act 2006) of ‘fraud by false representation’. Because, while none of the £91,570 donated to the General Election: Data and Voter ID crowdfunders has gone or will go directly into the pockets of Jolyon Maugham or anyone else at the GLP, much of it will go towards keeping the GLP’s some 40 staff in their well-remunerated, self-serving jobs.
But if Jolyon Maugham or any of the other legal eagles at the GLP would like to explain the difference, I am all ears.
In January, I blogged here about the Good Law Project’s unfulfilled but nevertheless remunerative pledge, first made in April 2023, to “bring litigation to test the lawfulness” of new rules on mandatory voter ID – introduced under the Elections Act 2022 and in force since January 2023 – “ahead of the next General Election”.
To recap, on 30 April 2023 the GLP had launched a crowdfunder in support of such litigation, stating:
Good Law Project has obtained legal advice from a legal team led by a specialist King’s Counsel. That advice identifies that there is a sensible legal challenge to be brought to [thevoter ID] rules. The precise prospects of success will depend on evidence that is still emerging. But the importance of the right to vote is such that measures that inhibit it cannot go unchallenged.
Act 1: One of our legal challenges is missing!
Almost nine months later, by mid-January 2024 the crowdfunder had raised £35,064 from 1,570 donors (an average donation of £22.33). But the crowdfunder page had never been updated, and there was no evidence of any imminent litigation by the GLP to “test the lawfulness” of the voter ID rules ahead of the approaching General Election. The GLP had seemingly not promoted the crowdfunder since mid-September 2023, there had been no new donations since October, and – as far as I could tell – the GLP had not even acknowledged, let alone commented on, the publication, on 30 November, of the Government’s response to the Electoral Commission’s statutory report on the 4 May 2023 local elections, as well as the Government’s own evaluation of the voter ID rules.
A visitor to the GLP’s [still open] Voter ID crowdfunding page would have no idea that, having vigorously promoted the crowdfunder and proposed legal challenge for four and a half months, the GLP have been entirely silent on the issue for the last four and a half months, even as the General Election approaches. They would not know about any of the various reports by the Electoral Commission, MPs and the Government that failed to identify any significant evidence of young people being especially disadvantaged or discriminated against by the voter ID rules. And they would have no way of knowing whether the GLP have revised their assessment of the proposed legal claim’s prospects of success.
In short, a visitor to the GLP’s Voter ID crowdfunding page would not have the material information that they need to make an informed decision about whether or not to donate to the crowdfunder.
Accordingly, on 29 January, I submitted a complaint to the Advertising Standards Authority about the misleading nature of the GLP’s Voter ID crowdfunder page (ASA ref: A24-1231151).
Act 2, scene 1:The GLP find a ‘letter before claim’ down the back of their sofa!
On 14 February, I updated my blog post of 21 January, as on 13 February, with the crowdfunder still at £35,064, the GLP announced on their news pages that the Good Law Practice – the law firm established by the GLP in 2022 – had sent a Pre-action Protocol (PAP) ‘letter before claim’ to the Secretary of State for Levelling Up, Housing & Communities; they also promoted the crowdfunder page on X (formerly Twitter) for the first time since September.
While the GLP’s announcement noted that “this [legal] challenge is not straightforward”, there was no explicit warning about the proposed claim’s prospects of success, despite the litigation strategy having fundamentally changed since April 2023 (see below). And the Good Law Practice’s ‘letter before claim’, dated 9 February, stated: “Given the decision in this matter will require an application for judicial review to be filed by the end of February at the latest, we request a reply no later than Monday 19 February 2024”.
According to the Good Law Practice’s ‘letter before claim’ and the GLP’s announcement, the proposed claimant in the case was ‘Alice’, a “registered voter and transwoman with disabilities who has no photographic identification”, and is unable to obtain such photo ID because his “mental health issues” and “trans gender identity” present “a barrier to dealing with the administrative and bureaucratic hurdles necessary to do so”.
However, the ‘letter before claim’ did not explain why ‘Alice’ is unable to apply (online or on paper) for a (free) Voter Authority Certificate (VAC), which can be used as photo ID when voting at a polling station. Indeed, the VAC scheme was not even mentioned in the 13-page ‘letter before claim’.
To my mind, this was surprising, given the ease with which an application for a VAC can be made, and the absence of burdensome evidence requirements (such as endorsement by “signatories” who have known the applicant for two years and/or are a “professional person”). All that is needed to apply for a VAC is one’s date of birth and National Insurance number (plus, of course, a photo). And, as a recipient of Universal Credit, ‘Alice’ must have a National Insurance number. Furthermore, the ‘letter before claim’ did not acknowledge that ‘Alice’ could apply for a postal vote, for which no photo ID is required. In short, there is no reasons for ‘Alice’ to seek judicial review, which is supposed to be a remedy of last resort when all other means of addressing the ‘issue’ have failed.
Act 2, scene 2: The GLP update their update
As well as the announcement on the GLP’s ‘news’ pages, on 13 February the GLP also posted a (brief) update on their Voter ID crowdfunder page – the first update to the crowdfunder page since its launch in April 2023 – misleadingly headed “We’ve issued proceedings”. This would have suggested to prospective donors that the GLP/Good Law Practice had now filed a legal claim with a court, but that was simply not true. The Good Law Practice had simply sent a ‘letter before claim’, the very purpose of which is to try to resolve the issue without recourse to legal proceedings. The Civil Procedure Rules clearly state that proceedings are started when a legal claim is filed with the court.
As noted in a further update to my blog post of 21 January, on or about 18 February the GLP partially corrected the misleading wording of this update to the crowdfunder page. However, over the five days on which the crowdfunder page displayed the misleadingly-worded update (i.e. 13-18 February), during which time the GLP heavily (and misleadingly) promoted the crowdfunder on social media, 1,386 people donated a total of £23,595 to the crowdfunder, bringing the overall total to £58,659.
Accordingly, I updated/renewed my complaint to the ASA/CAP (ASA ref: A24-1233740), and submitted a complaint to the Solicitors Regulation Authority about Lochlinn Parker, the managing partner of Good Law Practice.
Original GLP update to Voter ID crowdfunder, dated 9 February but posted on 13 February (“We’ve issued proceedings”); and replacement update, also dated 9 February but posted on or about 18 February (“We have sent a pre-action letter”).
Act 3: Matrix Chambers to the rescue!
The 29 February deadline for the issuing of a court claim – that date being three months since the publication, on 30 November, of the Government’s response to the Electoral Commission’s statutory report on the May 2023 local elections, which the Good Law Practice had identified in their ‘letter before claim’ as ‘the decisions’ by the Secretary of State that the proposed claimant, ‘Alice’, proposed to challenge – passed without any further update from the GLP. But on 1 March, in a further update to the Voter ID page, and on social media, the GLP announced “We’ve filed a claim with the court for Judicial Review”. And the update included links to both the Government Legal Department’s response, dated 27 February, to the Good Law Practice’s ‘letter before claim’, and Alice’s subsequent Statement of Facts and Grounds, dated 29 February and authored by two barristers at Matrix Chambers.
In its strongly-worded response of 27 February to the Good Law Practice’s ‘letter before claim’, the Government Legal Department states:
Whilst your letter purports to have been sent in accordance with the Pre-Action Protocol for Judicial Review, we note with real concern that this matter appears to be subject to an undisclosed crowdfunded campaign by the Good Law Project which states that it “will bring litigation” in respect of the voter identification requirements. That pronouncement, together with … the significant period that has passed since the ‘decision’ [of 30 November] in which you could reasonably have entered into correspondence … seriously calls into question your compliance with the spirit of the Protocol. Indeed, it is suggestive of an intention to issue a claim (utilising the near £60,000 raised from the public), prior to expiry of the 3-month time-period, irrespective of the contents of this letter.
No doubt in recognition of the significant passage of time since the [Elections Act 2022] came into force [on 16 January 2023] and the fact that any such legislation would be unchallengeable [by Judicial Review] in any event, your letter instead focuses on alleged ‘decisions’ contained with the Government’s 30 November 2023 publication entitled Government response to the Electoral Commission report on May elections. That is, ‘decisions’ not to (i) expand the list of accepted forms of identification that was determined by Parliament or (ii) continue data collection beyond the period which had been approved by Parliament.
Our client is concerned to read that, despite a particularly detailed pre-action letter comprising some 52 paragraphs, with 26 footnotes, there is no mention whatsoever of the availability of a voter authority certificate (VAC). We trust that you have brought this to [Alice’s] attention.
Perhaps even more troubling to [the Secretary of State] is the failure of the Good Law Project to mention the VAC on its crowdfunding page or in its ‘case update’. As you are no doubt aware, a significant recommendation of the Electoral Commission (which was accepted by the Government concerned the importance of increasing awareness of the support available for disabled voters.
In light of the information above, we trust that your client will now consider applying for a VAC, which will hopefully provide a great degree of reassurance about the Secretary of State’s commitment to assisting all voters. A copy of the application [form] is enclosed with this letter. It is noted that [Alice] is in receipt of Universal Credit which is likely to mean she has a National Insurance number and therefore would be able to meet the primary identity verification check for VAC, requiring no further supporting paperwork or countersignature.
The Secretary of State will strongly resist [Alice’s] claim (if pursued) and will seek the costs of defending any such claim.
In short, the voter ID rules introduced under the Elections Act 2022 and in force since January 2023 do not prevent ‘Alice’ from exercising his right to vote, as he can easily apply for a Voter Authority Certificate (with the assistance of the GLP/Good Law Practice if necessary), or a postal vote. And, in any case, contrary to the GLP’s claim on the Voter ID crowdfunding page in April 2023, the proposed Judicial Review does not challenge the ‘voter ID rules’ as such, but only relatively inconsequential ‘decisions’ made by the Secretary of State in relation to the Government’s consideration (and rejection) of Electoral Commission recommendations in November 2023.
So, even if Alice’s proposed Judicial Review were to be successful – which seems most unlikely, given that he is not prevented by the voter ID rules from voting in any General Election held this year – the lawfulness of the voter ID rules would still stand. All that would happen is that the Secretary of State would have to review and remake those November 2023 ‘decisions’ in respect of two Electoral Commission recommendations.
Even if the Secretary of State substantially changed or even reversed those two decisions, it is far from clear how ‘expanding the list of accepted forms of identification’ would bring any significant benefit to Alice, as (a) according to the GLP, Alice has no photographic ID at all, so there is no photographic ID document that could be added to the existing list, to Alice’s benefit; and (b) both Alice and everyone else with a National Insurance number can easily apply for a (free) Voter Authority Certificate (or for a postal vote, for which no voter ID is required). And ‘continuing data collection beyond the period which had been approved by Parliament’, would not bring any benefit to Alice or anyone else before the next General Election.
None of this was evident from the GLP’s (brief) updates to the Voter ID crowdfunder page.
Act 4: Things fall apart
Nevertheless, on 29 February the Good Law Practice filed a court claim on behalf of ‘Alice’. From Alice’s Statement of Facts and Grounds, dated 29 February and authored by two barristers at Matrix Chambers, it is evident that the court claim challenges only one of the Secretary of State’s decisions of 30 November, namely that in respect of ‘expanding the list of accepted forms of identification’. And the Statement concedes that:
While contemplating the [Voter Authority Certificate] process continues to cause [Alice] significant anxiety – such that she has not yet been able to bring herself to go through it, and suspects she would only manage to do so “right at the last minute” – she hopes that she will ultimately be able to obtain a VAC before the next elections and will therefore be able to vote.
It is not clear from the Statement why inputting no more than his date of birth and National Insurance number to an online or paper form – that is, a process involving considerably fewer “administrative and bureaucratic hurdles” than the application process for Universal Credit, which Alice has successfully negotiated, or the process for engaging a law firm to bring a Judicial Review claim against a Secretary of State – should cause Alice “significant anxiety”. But the Statement goes on to suggest that, “even if [Alice] is (as she hopes) ultimately able to resolve her own situation, she remains worried for the ‘many people whose situation is similar to mine but much worse, and who end up being disenfranchised’.”
In fact, the addition of any one ID document not already on the list of accepted forms of identification would most likely benefit only a small number of people. Neither the GLP nor the Good Law Practice have identified any form of ID held by Alice that Alice or the GLP would like to see added to the list, thereby obviating the need for him to obtain a Voter Authority Certificate, but in its 30 November 2023 response to the Electoral Commission’s statutory report the Government explained its decision not to expand the existing list in the following terms:
The key challenge is the diminishing return of including additional documents on the list. Research by the Government and the Electoral Commission has shown consistently that the vast majority of the electorate (96%) hold a form of photographic identification that is on the existing list. As such it is likely that a similar percentage of the holders of any potential additional document will already also hold another document that is on the current list and therefore already accepted – as such the addition would not significantly increase coverage.
Whatever, the Good Law Practice’s Statement of Facts and Grounds asserts that the decision not to expand the list of accepted forms of identification is a breach of both the Public Sector Equality Duty and the Tameside duty of inquiry. Accordingly, Alice seeks an Order quashing the decision.
From my informal conversations with a number of lawyers, it is clear that I am not alone in thinking that it would be astonishing were a judge to grant permission for Alice’s Judicial Review claim to proceed to a hearing. Judicial Review is a remedy of last resort, and the Good Law Practice have in effect conceded that Alice is not “blocked” from voting by the Voter ID rules, as he can (and will) apply for a Voter Authority Certificate. So there is simply no need for Alice to bring a Judicial Review claim.
It seems significant that, by February 2024, despite having started work on this issue in 2022, and despite having raised some £35,000 via a crowdfunder launched in April 2023, the GLP appears to have identified only one person – Alice – wishing to bring a legal challenge to the Voter ID rules. And it is simply astonishing that the Good Law Practice’s ‘letter before claim’ did not so much as mention the ability of Alice and others without photo ID to apply for a (free) Voter Authority Certificate (VAC).
Indeed, one has to wonder why none of the GLP’s many case updates, social media posts and emails to supporters since April 2023 ever mentioned, let alone addressed, the VAC process. It’s almost as if the GLP became so convinced by their own rhetoric about the potential impact of the Voter ID rules that they failed to do the most basic research.
These perplexing failures and oversights, together with (i) the GLP’s previous failure to even acknowledge, let alone comment on, the Government’s 30 November 2023 report containing the ‘decision’ that Alice now seeks to challenge by way of Judicial Review, at that time (see my blog post of 21 January; and (ii) the GLP’s utter silence on the issue of the Voter ID rules from mid-September 2023 until mid-February 2024, would suggest that the Judicial Review claim now filed with the court – at the last possible moment – is not a genuine attempt to protect the right to vote of Alice and others, but a desperate attempt to give the impression of having fulfilled the GLP’s April 2023 pledge to “bring litigation to test the lawfulness” of the Voter ID rules “ahead of the next General Election”.
However, Alice’s Judicial Review claim does not fulfil that pledge, because – as noted above – it does not challenge the lawfulness of the voter ID rules, and even if successful would most likely not result in any significant change to those rules before the coming General Election, whenever that election is held. Yet, between April and October 2023, some 1,500 people donated more than £35,000 to support a legal challenge that the GLP said would directly challenge the lawfulness of the voter ID rules.
Furthermore, in just five days in mid-February 2024, another 1,400 people donated another £23,600 to the crowdfunder on the basis that the GLP had “issued proceedings” – that is, filed a court claim – when in fact the Good Law Practice had simply sent a ‘letter before claim’, the very purpose of which is to attempt to resolve the issue without the issuing of legal proceedings. Since the misleading update was replaced, on 18 February, only 44 people have donated.
Act 5: Vanity trumps impact
Since then, the total sum donated to the (still open) crowdfunder has risen further, to £59,746. Yet, even if permission is granted by a judge (which seems unlikely), there is little if any chance of Alice’s Judicial Review claim getting as far as a hearing before 2 May, which is when a growing number of politicians and commentators expect the next General Election to be held, let alone before 26 March, which is the latest date on which Parliament can be dissolved for a General Election on 2 May.
In short, pretty much all of the £59,746 raised by the GLP’s Voter ID crowdfunder was donated without the donors having the material information that they needed to make an informed decision about whether or not to donate to the crowdfunder (and, if so, how much).
None of that £59,746 has gone or will go directly into the pockets of Jolyon Maugham or anyone else at the GLP, of course. And, unless they are acting on a pro bono basis, some of it will go to Sarah Hannett KC and Eleanor Mitchell of Matrix Chambers (the author’s of Alice’s Statement of Facts and Grounds). But if, as I and others expect, Alice’s Judicial Review claim is refused permission, at least some of the £59,746 will simply go towards keeping the GLP’s some 40 staff in their well-remunerated jobs.
Epilogue
The Voter ID rules were a daft, unnecessary and therefore wasteful policy initiative, a political fix in search of a (near non-existent) problem. But, with 96% of voters holding at least one form of photo ID on the list of accepted forms of such ID, and the available alternatives of a (free) Voter Authority Certificate or a postal vote, there is little reason to think the rules will disenfranchise any informed voters. The some £60,000 raised by the GLP for a seemingly doomed legal challenge would have been better spent on a campaign to raise awareness of the new rules, and on facilitating applications for a VAC or postal vote where necessary.
But, however worthwhile, such everyday toil would not have brought Jolyon Maugham KC much glory. In this crowdfunded case – as in others before it – Jolyon has sacrificed impact for vanity. And, as Jolyon himself might say, that is very much of today.
Earlier this month, on this blog, I posted my initial thoughts about the surprisingly-timed Ministry of Justice consultation on Employment Tribunal (ET) fees, launched on 29 January, as well as some further thoughts and my proposal for an alternative fees regime that would better protect access to justice while raising more money for the Ministry.
In short, given the dire state of public finances and continuing uncertainty about the precise location of the Money Tree, I do not think it is unreasonable to expect users of the ET system to make a modest contribution towards the annual £80m cost of that system. However, if there is to be a fees regime, then all users of the ET system – including respondent employers and each of the claimants in a multiple claimant case – should pay a fee, not just single claimants. And that would allow for a lower level of fee, and/or more case-type exemptions, and/or greater total fee income for HMCTS.
Earlier this week, the TUC published a joint statement with 47 other organisations “against Employment Tribunal fees”, the clear implication being that the 48 organisations oppose not just the modest fees regime proposed by the Ministry of Justice last month, but any ET fees regime. On principle, or something.
My response on X (formerly Twitter) to the joint statement soon had one of the many sanctimonious twerps at the TUC trawling through my X/Twitter feed all the way back to early 2014, when we still had the choice between “stability and strong government” with David Cameron/Theresa May/Boris Johnson/Liz Truss/Rishi Sunak or “chaos with Ed Miliband”, I was busy documenting the impact of the hefty ET fees regime introduced in July 2013, and the sanctimonious twerp was a journalist covering the City of London.
Whatever, the TUC’s joint statement did at least remind me that I hadn’t yet submitted my response to the Ministry of Justice consultation. So what follows is what I submitted to the Ministry yesterday.
1. Do you agree with the modest level of the proposed claimant issue fee of £55, including where there may be multiple claimants, to ensure a simple fee structure?
No. I accept, as the Supreme Court noted in 2017 in the UNISON judgment, that “Fees paid by litigants can, in principle, reasonably be considered to be a justifiable way of making resources available for the justice system and so securing access to justice”. And I accept that a £55 claimant fee would not create an intolerable barrier to justice – to my mind, if a would-be claimant does not qualify for remission, and is deterred by a £55 fee, then perhaps the claim is not worth bringing (at an average cost to taxpayers of £2,400).
However, with the introduction of mandatory Acas early conciliation from 2014, respondent employers are as much ‘users’ of the ET system as claimants, because the State has already provided them with a taxpayer-funded opportunity to resolve the issue, for free. So, if workers are to pay a fee to pursue an ET claim, employers should also pay a fee to defend an ET claim.
Furthermore, I see no good reason why the tens, hundreds or even thousands of claimants in a multiple claimant case (MCC) should pay only one £55 fee between them. All such MCC claimants are users of the ET system, and if their case is successful they will all benefit accordingly. In 2022/23, the 2,579 MCC cases had an average of 21.3 claimants, so the average MCC claimant would have paid just £2.58 towards a £55 fee.
I am aware that, in 2011-13, the TUC and others cited Chapter 6 of the HM Treasury Handbook ‘Managing Public Money’ to argue that it would be wrong to charge each MCC claimant the same fee as single claimants, because that would lead to HMCTS ‘making a profit’ on large MCC cases. However, with a fee set at just £55, there would need to be 44 or more claimants for an MCC case to generate total fee income in excess of the £2,400 average cost of processing an ET case, and as already noted in 2022/23 the average number of claimants in an MCC case was 21. So, this minor issue could be easily addressed by, for example, a cap on the total amount of fees paid in MCC cases. However, to my mind there is a strong, principled case for making MCC cases an exception to the ‘general principles’ set out in the HM Treasury Handbook.
Assuming (somewhat crudely, but I don’t think it matters much) that there is one respondent employer for each single claimant and each multiple claimant case (MCC), in 2022/23 there were 30,417 single claimants, 32,996 respondent employers, 54,884 MCC claimants, and 1,400 EAT appellants. And charging all those 119,697 users of the ET system, rather than just the 30,417 single claimants and 1,400 EAT appellants, a modest fee would make it much easier to ensure that the fees regime does not create a barrier to justice (by lowering the level of the fee, and perhaps by widening the scope for fee exemptions to cover simple wage claims), while also delivering a more substantial contribution towards the £80m cost of the ET system.
For example, if the fee for single claimants, MCC claimants and respondent employers was set at an even more modest £35, and the fee for EAT appellants at the proposed £55, then – after allowing for remission on the same basis as set out in the consultation’s Impact Assessment – the fees regime would deliver total net annual fee income of £4m, more than twice that of the proposed, claimants-only regime, and equivalent to 5% of the £80m cost of the ET system.
2. Do you agree with the modest level of the proposed EAT appeal fee?
Yes. For the reasons given in my response to Q1, above, the proposed EAT appeal fee does not seem unreasonable to me.
3. Do you believe this proposal meets the three principles set out in the consultation document?
Yes, I accept that the proposed fees regime meets the principles of Affordability, Proportionality and Simplicity. However, for the reasons set out in my reponse to Q1, above, the proposed fees regime is not fair, as it does not apply to all ‘users of the ET system’. To my mind, any ET fees regime should also meet the principle of Equity. And the principle of Equity demands that, if there is to be a fees regime, then all users should pay a fee (subject to remission and case-type exemptions).
4. Do you consider that a higher level of fees could be charged in the ET and/or the EAT?
No. To meet the principles of Affordability and Proportionality, the level of fees should be as low as is consistent with the objective of relieving “some of the cost to the general taxpayer”. And, as set out in my response to Q1, above, charging a fee to all users of the ET system, rather than only some of them, would allow for the fee level to be lower than the proposed £55.
5. Are there any other types of proceedings where similar considerations apply, and where there may be a case for fee exemptions?
Yes, I believe there is a strong case for exempting straightforward, low-value claims, such as wages claims. Indeed, there is case for such claims being resolved not by the ET system, but by the proposed Single Enforcement Body.
6. Are you able to share your feedback on the different factors that affect the decision to make an ET claim, and if so, to what extent? For instance, these could be a tribunal fee, other associated costs, the probability of success, the likelihood of recovering a financial award, any other non-financial motivations such as any prior experience of court or tribunal processes etc.
I do not feel able to add to what is set out in the consultation paper.
7. Do you agree that we have correctly identified the range and extent of the equalities impacts for the proposed fee introductions set out in this consultation?
Today is International Cochlear Implant Day. If you’ve not heard of cochlear implants, they are an amazing technology that enables profoundly deaf children and adults to ‘hear’ sound, and so learn to communicate primarily by speech (often supplemented by lip-reading and use of sign language). The technology and medical science involved is really quite extraordinary.
My son Sam, now 24, has been a cochlear implant user since he was two, having been left profoundly deaf by severe pneumococcal meningitis in infancy. And, six years ago, I wrote on this blog about the difference that Sam thought having cochlear implants had made to his life so far. This included being able to get matey with Turkish pirates, swap hospital stories with an Olympic champion, become something of a dance floor legend (much like his Dad, tbh), and hear a stadium full of Harlequins fans moaning about how useless Harlequins are as we watch them lose, again.
That year, 2018, Sam was in his final year at school (the residential deaf school Mary Hare, near Newbury). So the six years since have seen some big changes in his life. And many of these changes were facilitated – if not made possible – by Sam’s cochlear implants enabling him to use speech as his primary means of communication. Because, while Sam is also a fluent user of Sign Supported English, that’s not much help if the person he’s trying to talk to does not sign. And only 0.02 of the UK population do sign.
Perhaps the biggest change is that Sam has abandoned his previous allegiance to Harlequins – our local Premiership rugby team – in favour of Saracens, about three million miles away in north London. But this is not because he is fickle. In 2019, Sam joined the disability rugby programme run by Saracens Foundation, and was soon developing essential life skills, improving his communication skills, and emerging as a leader and role model to other disabled young adults.
Sam’s personality, commitment and hard work – together with his shameless switch of allegiance to Saracens – soon secured him a staff role on the Foundation’s Special Educational Needs holiday camps, helping children with learning difficulties and/or physical disabilities reap the mental and physical benefits of sporting activity.
Sam working at a Saracens Foundation SEN holiday camp in St Albans
With the active support of Saracens stars such as Jackson Wray, Sean Maitland and Ella Wyrwas, Sam continued to blossom, and in early 2023 he became an assistant coach of the newly-launched Saracens Foundation junior rugby programme, working with disabled children aged 8-13.
By then, Sam’s volunteering with Ben Lampert of Brentford FC Community Sports Trust had led to his appointment as a casual assistant sports coach, helping Ben deliver multi-sports sessions in west London primary schools, as well as sports days, holiday camps and outings. And all this while playing mixed ability rugby with Surrey Chargers at Chobham RFC on Saturdays.
Sam with Surrey Chargers teammate JackSam with Surrey Chargers teammate Will
Along the way, Sam has met and downed a beer or two with rugby legends such as Owen Farrell, Jamie George, Maro Itoje and Billy Vunipola, been interviewed on stage by David ‘Flats’ Flatman at the Saracens Foundation annual fundraising dinner, completed Level 1 and 2 coaching qualifications, scored a try for Surrey Chargers and enjoyed the craic at the International Mixed Ability Rugby Tournament in Cork, starred alongside Marios and Memnos Costi and Steph Hanratty in an episode of the TV series Deaf Away Days, run several 10Ks to raise money for the Cochlear Implanted Children’s Support Group, played on the Twickenham pitch with Project Rugby during half-time of the Gallagher Premiership final between Leicester and Saracens, and attended Jackson Wray’s testimonial dinner at the Oxo Tower restaurant. And he’s loved every moment.
With Ella Wyrwas after Ella and Saracens Women won the Premier 15s final v Exeter, 2022With Jackson Wray, at Sale’s AJ Bell StadiumWith Owen Farrell at Jackson Wray’s testimonial dinner, Oxo Tower, April 2023“Deaf Away Days” at Saracens v Northampton
It goes without saying that all of this has made me and Sam’s mum, Joanna, very proud. And perhaps my favourite moment came last summer, when Sam was nominated and then shortlisted for the Rugby Ambassador award at the Premiership Rugby Community Awards 2023, in my old stamping ground, the House of Commons. Sam didn’t win, but then one of the values that Sam has acquired through his participation in the Saracens Foundation disability rugby programme – and which he now works to instil in others – is that it’s not really the winning that counts.
No doubt Sam would be having a great life without access to sound, as a user of sign language only. But Joanna and I are deeply grateful to the numerous surgeons, doctors, audiologists, speech & language therapists, and teachers of the deaf for giving Sam the opportunity to enjoy the world in ways that might otherwise not have been available to him. And we’re immensely grateful to Sean Maitland, Ella Wyrwas, Jackson Wray, Charlie White, Ryan Eaton, Paul Tanner and all the staff and volunteers at Saracens Foundation for helping Sam make the very most of that opportunity.
No one appreciates all this amazing support more than Sam. So on 7 April, Sam will run the London Landmarks Half Marathon to raise money for Saracens Foundation. And I’d be chuffed if you could sponsor Sam by visiting his fundraising page. (Suffice to say, I will not be running the Half Marathon with Sam – I’m more a Full Mars Bar man, these days.)
With Sean Maitland (Saracens, Scotland & British Lions) in the StoneX stadiumSam at the Premiership Rugby Community Awards, House of Commons, July 2023With Topsy Ojo at the Premiership Rugby Community Awards 2023With David ‘Flats’ Flatman at the StoneX
Jolyon Maugham KC likes to boast that the crowdfunding of his (Not Very) Good Law Project is “best in class”. But the GLP’s latest crowdfunder, in support of legal action against the Conservative Party for alleged breaches of data protection rules, falls well short of Jolyon’s self-declared standards. Indeed, somewhat ironically, the crowdfunder breaches advertising standards rules.
Since March 2017, the GLP have launched 65 crowdfunders, which to date have in total raised a stonking £5.271 million. And, until January 2023, these crowdfunders were all hosted by the crowdfunding platform Crowdjustice (two of these crowdfunders, launched in November 2020 and November 2022 respectively, remain open). However, since February 2023 the GLP have hosted new crowdfunders on their own website.
To date, the GLP have launched 11 such in-house crowdfunders (of which five are now closed, and six remain open). And, on 4 August 2023, the GLP revised the format of these in-house crowdfunders, adding a selection of ‘donation amount’ buttons and other details, including an option to cover a ‘transaction fee’ of up to 4.5% of the donation, and a statement that “Most donors donate £X or more” – the clear implication being that £X is the median donation to that crowdfunder.
For example, in late November 2023 the GLP’s NHS Data crowdfunder, launched in July 2023, stated: “Most donors donate £20 or more”, and the £20 ‘donation amount’ button was highlighted (the other ‘donation amount’ buttons being £10, £35, £50, £100 and £200). And, at that time, the average (mean) donation to the crowdfunder was £19.93 (£64,734.52/3248 donations).
Similarly, in early January 2024 the GLP’s Voter ID crowdfunder, launched in April 2023, stated: “Most donors donate £23 or more”, and a £23 ‘donation amount’ button was highlighted (the other buttons being £10, £20, £50, £100 and £200). And, at that time, the average (mean) donation to the crowdfunder was £22.35 (£35,063.36/1569 donations).
In short, in each case, and as one might expect, the stated median donation was very close to the the average (mean) donation to that GLP crowdfunder.
However, in a thread posted on X (formerly Twitter) on 26 January, I noted that the latest GLP crowdfunder – their General Election: Data crowdfunder, launched four days previously in support of legal action against the Conservative Party – stated “Most donors donate £29 or more”, even though the average donation to the crowdfunder was at that point only £18.45. Funnily enough, an incomplete new GLP crowdfunder, posted on or before 26 December 2023 but quickly deleted, had also stated “Most donors donate £29 or more”, even though there had been no donations to that crowdfunder. And the General Election: Data crowdfunder included a £29 ‘donation amount’ button.
In contrast, like the NHS Data and Voter ID crowdfunders described above, on 26 January the GLP’s Net Zero 2 crowdfunder stated “Most donors donate £25 or more”, and the average donation to the crowdfunder was £25.58. Similarly, the GLP’s Climate Protestors crowdfunder stated “Most donors donate £23 or more”, and the average donation to the crowdfunder was £23.41.
It did not seem credible that the median donation to the General Election: Data crowdfunder could be so much greater than the average (mean) donation. Rather, the £29 figure looked to me like an attempt to misleadingly solicit larger donations than donors might otherwise make. So I asked Stewart Wood, the Labour Party peer and GLP board member, to comment (I couldn’t ask Jolyon himself, as he blocked me years ago).
Lord Wood did not respond but, on or before 5 February, the GLP amended all six of their open, in-house crowdfunders, so that, in each case, they now state: “Most donors donate £18.40 or more”.
It is not clear what this £18.40 figure represents – though it seems most unlikely that the average (mean) or median donation to each of six discrete crowdfunders would be exactly the same. And it is not clear why the GLP have revised the text of their General Election: Data crowdfunder from “Most donors donate £29 or more” to “Most donors donate £18.40 or more”, yet not replaced the £29 ‘donation amount’ button with an £18.40 ‘donation amount’ button. But, whatever the explanation, it is now clear that the “£29 or more” statement was misleading.
Indeed, given the rapidity with which the GLP abandoned it after my 26 January thread on X, together with the fact that – just a few weeks previously – it had been included in a draft crowdfunder seemingly posted online in error (and quickly deleted), the £29 figure appears to be an arbitrarily chosen sum designed to encourage a larger donation than a donor might have been intending to make (the average donation to the General Election: Data crowdfunder being just £18.45). And, if so, that is a straightforward breach of Rule 3.3 of the Non-Broadcast Code of Advertising Practice (the CAP Code) produced by the Committee of Advertising Practice, the sibling organisation of the Advertising Standards Authority.
Rule 3.3 of the CAP Code provides that:
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner [emphasis added].
Material information is information that the consumer needs to make informed decisions in relation to a product.
The Committee of Advertising Practice has stated explicitly that “individuals or companies seeking donations should be aware that claims made on their pages on crowdfunding websites constitute advertising and are subject to the [CAP] Code.”
The only possible purpose of the “Most donors donate £X or more” statement is to provide prospective donors with material information, namely the median donation to that crowdfunder to date, with a view to ‘helping’ them make an informed decision about whether, and if so how much, to donate.
Accordingly, I have submitted a complaint about the GLP’s General Election:Data crowdfunder to the ASA/CAP (ref: A24-1232349).
It’s perhaps worth adding that, despite the textual amendment to “£18.40 or more” in each case, all six of the GLP’s in-house crowdfunders remain in breach of Rule 3.3 of the CAP Code, in that none of them includes an £18.40 ‘donation amount’ button. The General Medical Council crowdfunder, for example, still includes a highlighted £27 ‘donation amount’ button, alongside £10, £20, £50, £100 and £200 buttons, while the Net Zero 2 crowdfunder still includes a highlighted £25 ‘donation amount’ button, alongside £10, £20, £50, £100 and £200 buttons.
[Update: On 13 February, the GLP further amended five of the six crowdfunders, in each case replacing the previous six ‘donation amount’ buttons with just five buttons (for £10, £20, £50, £100 and £200), without a ‘donation amount’ button linked to the “Most donors donate £X or more” statement. And this further revised format is also used in a new crowdfunder, launched on 10 February.
However, the General Election: Datacrowdfunder has not been further amended, so continues to include a £29 ‘donation amount’ button. Interestingly, since the crowdfunder was amended on 5 February, the average donation has fallen to £14.58.]
Whatever, if the “honest, open and trustworthy” Jolyon Maugham or Stewart Wood would now like to “default to transparency” and “proactively share” an explanation, I’m all ears.]
[Further update, 5 March: On or about 4 March, the GLP further amended all five of their open, in-house crowdfunders (the General Medical Council crowdfunder having been closed on 15 February, and the Net Zero 2 crowdfunder on 20 February), in each case replacing the statement “Most donors donate £18.40 or more” with “Most donors donate £19.09 or more”.
However, it remains unclear what this figure represents: the average (mean) donation to each of the five crowdfunders ranges from £18.39 (General Election: Data) to £39.05 (Suicide Prevention), and the collective average (mean) donation to the five crowdfunders is £20.71. So the £19.09 figure could be the collective median donation to the five open crowdfunders.
Despite these further amendments, however, the General Election: Data crowdfunder still includes a £29 ‘donation amount’ button.]
Last week on this blog, I set out my initial response to the Ministry of Justice proposal to introduce modest fees for Employment Tribunal (ET) claimants and Employment Appeal Tribunal (EAT) appellants. In short, given the dire state of public finances, and continuing uncertainty about the precise location of the money tree, I do not think it is unreasonable to expect users of the ET system to make a modest contribution to the (not insignificant) cost of that system. The challenge is to devise a fees regime that is (a) fair and (b) does not create a barrier to justice.
In other words, the Hamletian question is not ‘to fee, or not to fee’, but how to fee.
I did not say – perhaps because I thought it did not need saying – that the design of the fees regime has to meet (a) and (b), while also delivering, in terms of fee income, a significant contribution to the overall cost of the ET system. Otherwise, one might wonder whether introducing a fees regime is worth the candle – a point well made by one employment lawyer last week. Martin Pratt of RWK Goodman was quoted in City AM:
While it is good that the Government has acknowledged that the prior excessive tribunal fees of up to £1,200 did not strike the right balance, I don’t think that the tiny dent of £1.3m-£1.7m that the new, much reduced, £55 fees will make in the £80 million annual cost of the Employment Tribunals make the exercise worthwhile.
Anyway, I like a challenge. And, to my mind, it really is not that difficult to devise a modest fees regime that (a) is fair to users, (b) does not obstruct access to justice, and (c) delivers significantly more fee income to the Ministry of Justice than the unfair fees regime set out in the Ministry’s proposal. This is not rocket science. As Tom Hanks would say, if we can send humans to the moon, we can devise a fair, just and effective ET fees regime. (And if you don’t believe Tom Hanks would say such a thing, then you need to go watch his Moonwalkers, at the Lightroom in King’s Cross until 21 April.)
As I noted last week, the Ministry’s proposed fees regime is unfair for two, simple reasons.
Firstly, with the introduction of mandatory Acas early conciliation in 2014, respondent employers are as much ‘users’ of the ET system as claimants, because the State has already provided them with an opportunity to resolve the issue, at taxpayers’ expense. So, if workers are to pay a (modest) fee to pursue an ET claim, employers should also pay a (modest) fee to defend an ET claim.
Secondly, there is no good reason why the tens, hundreds or even thousands of claimants in a multiple claimant case should pay only one £55 fee between them. They are all users of the ET system, and if their case is successful they will all benefit accordingly. Maybe they should each pay a smaller fee than single claimants, but it is simply unfair that they should be able to use the ET system for a few pounds or even pennies each, while single claimants have to fork out £55. (In 2022/23, the 2,579 multiple claimant cases had an average of 21.3 claimants, so the average claimant in a multiple claimant case would have paid just £2.58 towards a £55 fee.)
Assuming (somewhat crudely, but I don’t think it matters that much) that there is one respondent employer for each single claimant and each multiple claimant case (MCC), in 2022/23 (the year on which the Ministry bases the Impact Assessment of its proposal), there were 30,417 single claimants, 32,996 respondent employers, 54,884 MCC claimants, and 1,400 EAT appellants. And you don’t have to have won the Fields Medal to recognise that charging all of those 119,697 users of the ET system, rather than just the 30,417 single claimants and 1,400 EAT appellants, a modest fee makes it much easier to ensure that the fees regime does not create a barrier to justice, while also delivering a more generous contribution to the Ministry’s balance sheet.
For example, the fee for single claimants, respondent employers and EAT appellants could be set at a very modest £35 (the cost of one day’s entry to Alton Towers), and the fee for MCC claimants at £20, and – after allowing for remission on the same basis as set out in the Ministry’s Impact Assessment – the regime would deliver total net annual fee income of £3.2 million, almost twice that of the Ministry’s proposed, claimants-only regime.
What’s not to like? (That’s a genuine question, btw – please do post your answer below.)
Labour Pains 