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:

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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”.

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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 of 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 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 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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Come together: the ballad of the PMBs

Last month, I noted on this blog that no fewer than six Government Bills masquerading as Private Members’ Bills are progressing through Parliament, to make up for the Government having shelved its repeatedly promised Employment Bill. And there has been a bit of a common theme to the Second Reading and Committee stage debates.

With apologies to the Beatles.

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Good Law Project: funny money

Back in November 2020, when Jolyon Maugham and his (Not Very) Good Law Project were launching new crowdfunded cases at the rate of more than one a month, the Guardian purred that the GLP “relies on crowdfunded donations of £10 or £20 from thousands of sympathetic supporters to pursue its cases”. But that’s not entirely true.

On 11 October 2022, the GLP launched a new crowdfunder – their 50th – in support of legal action on behalf of Nina Cresswell, who is being sued by a man she has publicly accused of sexually assaulting her 12 years ago. This stated that “so far we have spent £8,583 of our own funds getting legal advice for [Ms Cresswell], and defending her in court will cost a further £50,000”. And it set out an initial target of £30K, to be met within 30 days: “Your card will only be charged if the case meets its target of £30,000 by 1pm [on 10 November 2022]”.

In short, were that £30K target not to be met within 30 days, the donations pledged would not be drawn down, and yet another GLP campaign would have flopped. In June this year, a new GLP campaign to tackle ‘racism in schools’ was quickly abandoned after the associated crowdfunder failed to reach its initial £30K target, and the £13,690 of donations pledged were not drawn down.

Things got off to a flying start, as they usually do with such crowdfunders, and within a week – by 17 October – the Cresswell crowdfunder had raised a total of just under £10,600 from some 450 donors. But by 20 October the £10 and £20 pledges were drying up, and the crowdfunder had pretty much stalled at £10,767 from 498 donors (an average pledge of £21.62). At that point, the crowdfunder still needed more than £900 worth of pledges, every day, for another 21 days, if it were to reach its £30K target by 1pm on 10 November. But only a handful of small pledges were being made each day.

In other words, within ten days of its launch the crowdfunder was on track to fail to reach its initial target. So it was fortunate that, on 20 October, “someone” (Donor #499) anonymously pledged £4,233, the exact sum required to take the total to £15,000. And that, just three days later, after ten (small) pledges had nudged the total to £15,315, “someone” (Donor #510) anonymously pledged another £1,675, bumping the total to an even more respectable £16,990. (Maybe they intended to bump it to £17,000, but got their sums wrong. Whatever, “someone” soon tidied things up with a £10 pledge.)

These large, anonymous and curiously-sized pledges were also conveniently timed. Because, the next day, Monday 24 October, the GLP (or an ally) appears to have orchestrated some kind of ‘push’ of the crowdfunder to GLP supporters and/or potential donors, resulting in a steady stream, from about 2pm, of more than 150 small pledges (four out of five were for £25 or less, and the largest was for £100). Shortly before 10pm that evening the total passed £20,000 (from some 670 donors), but within 48 hours – by the morning of 26 October – things had once again settled down, with pledges at a total of £21,581 from 750 donors.

With 15 days to go, that still required a daily average of more than £550 worth of new pledges, if the crowdfunder were to hit its initial target of £30K. And, with the average pledge since Donor #510’s very generous £1,675 running at just £19, that implied another 30 pledges per day. But from 1pm on 26 October to 1pm today (27 October), the crowdfunder raked in just £385, from 20 donors.

So, once again, it was fortunate that, shortly before 2pm today, “someone” (Donor #781) anonymously pledged a stonking £7,824, the exact sum required to take the total to £30,000 (before Graham got in first with his £5 pledge).

As a result, the crowdfunder reached its £30K initial target with almost two weeks to spare. But no less than £13,732 (46%) of that £30K came from just three (presumably wealthy) donors. Though 778 little people did help out with their “£10 or £20 donations”.

Anyway, why not match “someone’s” donation of £7,824? Then reward yourself with a glass of Vin Santo and some cantuccini. Just be careful not to get any in your USB ports.

Update, 30 October: Well, “someone” (Donor #812) took me literally and, early today, they generously donated £8,550, the biggest donation yet and – once again – the exact sum required to take the total to the milestone of £39,000. As a result, no less than £22,282 (a whopping 57%) of that £39K has come from just four (presumably wealthy) donors. I do hope this “someone” rewarded themselves with a glass of Vin Santo.

Update, 2 November: Well, unlike the “donations of £10 and £20” – which have now almost completely dried up – the large, anonymous and curiously-sized donations keep coming. Of the £2,000 that’s been added to the crowdfunder’s running total since the £8,550 donation on 30 October, no less than 85% has come from just two of the 14 new donors – Donor #818 and Donor #826 – who pledged £890 on 31 October and £800 on 2 November respectively. (Excluding the six large pledges highlighted above, the average pledge to date is £20.76).

Update, 10 November: Today, at 1pm, was the original deadline for the crowdfunder to reach its critical, initial target of £30K. As noted above, the total amount pledged passed £30K almost two weeks ago, and at 1pm today it stood at £41,285. But no less than £23,972 (a whopping 58%) of that £41,285 came from just six anonymous pledges by up to six presumably wealthy donors. And, were it not for those six large pledges, then – other things being constant – the crowdfunder would have failed to reach its critical £30K target, the £17,313 of small pledges by 836 donors would not have been drawn down, and the Good Law Project would have been not very good, again.

Update, 22 December: So, those large, anonymous donations keep coming! As of yesterday, despite there having been no update on the defamation trial that was scheduled to start on 10 November, a slow trickle of small donations had nudged the total to £41,430. And then, today, donor #853 generously donated £570. Well, it is Christmas.

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Workers’ rights: Back to the future of December 2019?

So, with the “new era” of Liz Truss and Kwasi Kwarteng having lasted all of seven weeks, Rish! Sunak is back in Downing Street. And, shortly before being clapped through the lobby of Number 10 by the waiting officials and advisers, the shiny new Prime Minister used his first address to the nation to claim as his own the electoral mandate secured by Boris Johnson in December 2019:

The mandate my party earned in 2019 is not the sole property of any one individual, it is a mandate that belongs to and unites all of us. And the heart of that mandate is our manifesto. I will deliver on its promise.

Which, to this employment policy wonk at least, begs the question: Will Rish! Sunak deliver on the outstanding 2019 manifesto promises on workers’ rights, perhaps through an Employment Bill?

And why not? Dominic Raab is back at the Ministry of Injustice, searching through the bins for a discarded copy of his almost palindromic Bill of Rights Bill. Suella Braverman is back at the Home Office, searching for the miraculous policy that will ‘reduce net migration to tens of thousands’. And Jacob Rees-Mogg is back on the backbenches, where he belongs. So, why can’t we have the repeatedly promised Employment Bill back?

When I posed this question on Twitter earlier today, Daz Newman was quick to point out that some of those 2019 manifesto promises on workers’ rights are currently “making their way through Parliament as Government-sponsored Private Members’ Bills”. And it is indeed the case that, days after the (third) shelving of the Employment Bill in May this year – and as anticipated on this blog – the Government whips worked hard to sell a number of Government hand-out bills to some of the MPs who had just ‘won’ a top slot in the annual Private Members’ Bill (PMB) ballot. As a result, on 15 June no fewer than six Government Bills masquerading as PMBs were introduced by Labour, Liberal Democrat, SNP and Conservative backbench MPs.

Stuart McDonald’s Neonatal Care (Leave & Pay) Bill had its Second Reading on 15 July, and completed its Committee stage on 7 September. Dean Russell’s Employment (Allocation of Tips) Bill also had its Second Reading on 15 July, and completed its Committee Stage on 12 October (by which time Virginia Crosbie had taken over sponsorship of the PMB, due to Dean Russell having been made a BEIS minister by Liz Truss). Last week, on 21 October, Dan Jarvis’s Redundancy Protection (Pregnancy & Family Leave) Bill, Wendy Chamberlain’s Carer’s Leave Bill, and Wera Hobhouse’s Worker Protection (Amendment of Equality Act 2010) Bill all had their Second Reading (an event the Radio 4 Today programme accurately described as “a five-hour group hug”). And Yasmin Qureshi’s Employment Relations (Flexible Working) Bill is scheduled to have its Second Reading this Friday.

The three-hour Second Reading debate of Dan Jarvis’s Redundancy Protection PMB was notable for the number of MPs who expressed support for the Bill while at the same time making it clear they much prefer the so-called German model of redundancy protection repeatedly proposed by Maternity Action, Maria Miller MP and many others since 2016, and which is the stated policy (and 2019 manifesto commitment) of Dan Jarvis’s own Labour Party. As Maternity Action noted in their briefing for MPs, Dan Jarvis’s PMB will “simply entrench a broken system that does not work and does not protect women”, while the so-called German model is – in the words of Bob Stewart MP – “flipping good”.

The Second Reading debate of Wendy Chamberlain’s Carer’s Leave PMB was somewhat shorter – under an hour – while that of Wera Hobhouse’s Worker Protection PMB was so short – a mere 20 minutes – that, apart from Ms Hobhouse, the shadow minister and the minister, only one MP got to speak. Welcome to Democracy 2022.

However, even if these Government Bills masquerading as PMBs make it as far as the Statute Book – and most stand a very good chance of doing so, now that a snap General Election seems to be out of the question – that still leaves the following 2019 manifesto promises outstanding:

  • Create a single enforcement body to “crack down on any employer abusing employment law”. As previously noted on this blog, in June 2021 the Government confirmed this commitment “as set out in the Government’s manifesto. The new body will not just bring together three existing bodies into a single, recognisable organisation, it will deliver a significantly expanded remit. As a result, more vulnerable workers across the country will receive money that is owed to them.” This is arguably the most significant of all the 2019 manifesto commitments on workers’ rights. But then I would say that, as the creation of a single enforcement body was my idea.
  • Establish a new right for workers to “request a more predictable contract and other reasonable protections”. Just this week, business minister Dean Russell confirmed to MPs that the Government “remains committed” to introducing such a right.
  • Look at ways to make it easier for fathers to take paternity leave. As noted recently on this blog, almost three years on, there is no evidence of ministers having since done any such ‘looking’, and certainly no policy proposals have been forthcoming.

In addition, the 2019 manifesto promised a consultation on making flexible working the default and, while that consultation was undertaken in late 2021, we await the outcome and any progress towards the promised goal (Yasmin Qureshi’s Flexible Working PMB will simply make a number of welcome but relatively minor changes to the existing right to request flexible working). [Update: During the 90-minute Second Reading debate of Qureshi’s Flexible Working PMB on Friday, the Minister indicated that the Government will publish its response to the 2021 consultation “shortly” – which may or may not be more imminent than ‘in due course’. Significantly, perhaps, of the 11 MPs – other than Qureshi herself, the Minister and the shadow minister – who contributed to the debate, ten were Conservatives. It’s almost as if the PMB reaching the Statute Book matters more to the Conservatives than it does to Qureshi’s own Party.]

And then there’s the things that weren’t in the 2019 manifesto, but should (and indeed might) have been in the Employment Bill, such as reform of the chronically failing Shared Parental Leave scheme, and the extension of the Employment Tribunal time limit recommended by the Law Commission in April 2020.

So, yeah, come on Rish!, take us back to the future of December 2019!

[Update: On 28 October, during his first public outing as Prime Minister – a visit to Croydon University Hospital – Sunak the Sensible repeated his pledge to deliver “on the promise of the manifesto that we were elected on, with very strong support, in 2019”.]

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