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 And in the other five cases a judicial review claim was issued, but was withdrawn by the GLP without the case having been fully heard – let alone determined – by a court.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:

About wonkypolicywonk

Wonkypolicywonk is a policy minion, assigned wonky at birth, who has been lucky enough to work for two of the very best MPs in the House of Commons, and for Maternity Action, Working Families, Citizens Advice, the National Audit Office, the Law Society, and Amnesty International UK.
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2 Responses to Good Law Project: Win some lose some

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