Good Law Project: the rise and fall of the Jolyon Empire

With Jolyon Maugham KC of the (Not Very) Good Law Project at risk of losing his coveted title of Public Enemy Number One to Chancellor Kwasi Kwarteng, now seems a good time to update the tables set out in my blog post of 9 May, charting the impact of the GLP over three distinct eras since 2017.

As noted in my blog post of 12 June, we now have a little more information about some of the older GLP legal claims, and of course since then there have been a number of developments, including the launch of three new GLP crowdfunders, the withdrawal by the GLP of one legal claim (Michael Saiger), and the dismissal by the High Court of another (Net Zero – see paras. 261-275).

In addition, the GLP and their seedy co-claimants Mermaids have been having a torrid time with their illiberal but thankfully self-destructive challenge to the charitable status of the LGB Alliance, which will conclude in November. And it may not be long until I can add some colour to the rows for Abingdon Health, Trans healthcare, and Immensa testing.

The Golden Years (2017-19)

Thank goodness Jolyon got the Article 50 notification revoked and the prorogation of Parliament overturned, eh? Otherwise we might have left the EU and be living under a PM even worse than Boris Johnson. Oh, hang on …

The Manic Covid Era (2020-21)

Yes, that’s £8.98 million, and not a lot of green shading. Cherish those two High Court declarations! The life of every citizen is so much better for them.

[Update, 7 October: GLP’s claim in Abingdon Health was dismissed by the High Court today.]

(NB: Net Zero has moved to 2022, where it should have been all along.)

The Year of Living Dangerously (2022)

A mere £258K (and no green shading). Thank goodness those direct donations and grants are still pouring in, eh? The GLP now has more than 30 staff and a number of them are living their values on an annual salary of £84K (the same as an MP).

GLP organogram from the job pack, Head of Communications (maternity cover), 26 September 2022
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A general election crib sheet for candidates

Yesterday, Guardian columnist Martin Kettle argued persuasively that, if Liz Truss wins the Tory leadership contest on 5 September and becomes Prime Minister, she will have to call an early general election. And, a few hours later, woke Twitter was ablaze after both Truss and Rishi Sunak answered ‘no’ when asked the simple question ‘Is a trans woman a woman?’ at a hustings.

All of which got me thinking about what we can expect the candidates to face, should Martin Kettle be proved right (as I think he will be). So, as it is my mission in life to be helpful to politicians, I have devised the following handy crib sheet. You’re welcome, and good luck.

What is a woman? A woman is an adult human female.

How much does a pint of milk cost? About 85p, which is an increase of more than 100% in just one year. I am still waiting for Jacob Rees-Mogg to claim this as a benefit of Brexit.

Can humans change sex? No. We are not clownfish.

Do bears poop in wooded areas? Yes. People should always wear stout boots when hiking.

Do you agree with Wickes and other retailers that there should there be no LGB without the T? No. Lesbian, gay and bi people have the right to organise and advocate for their rights without having to get permission from Owen Jones or Jolyon Maugham QC.

Is the world flat? No.

Should biological men be allowed to play in women’s sport? No.

Does the Pope wear a big hat? Yes.

Can men grow a cervix if they go on hormone treatment and all the rest of it? No.

Is the sky blue? Yes.

Should men be held in women’s prisons? No.

How much does a loaf of bread cost? The average loaf now costs £1.15, which is 14% more than five years ago. Again, I’ve not heard anything from Jacob Rees-Mogg about this.

Are some people born in the wrong body? No.

Is water wet? Yes.

Is a trans woman a woman? No, humans cannot change sex. A small minority of trans women – those who have sought and obtained a Gender Recognition Certificate – are legally treated as women for the purposes of the sex discrimination provisions in the Equality Act. But that is not the same as being a woman – no law can change the material reality of sex.

Does a fish need a bicycle? No.

What is the minimum wage? The current adult rate is £9.50 per hour, which is just £332.50 for a 35-hour week. We need to make the minimum wage a living wage.

Do men get pregnant? No.

Can pigs fly? No.

What are your preferred pronouns? I don’t dictate how people refer to me when I am not present, but I do like the sound of ‘Secretary of State’.

Does sex matter? Yes, of course it does.

Will the sun come up tomorrow? Possibly not, if Liz Truss gets back into Downing Street and starts a nuclear war with France.

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Employment Tribunal claims: latest data

Two months ago on this blog, I welcomed the (partial) return of both the quarterly ET statistics and the monthly HMCTS management information on ET receipts and disposals. And last week the latest set of the latter gave us the broad picture to June 2022, i.e. up to the end of Q1 of 2022/23.

As the following chart shows, total ET receipts (single claims + multiple claimant cases) continue to run at just under 60% of the peak level seen in late 2020, and at 75% of the level seen in the last three quarters before the onset of the Covid pandemic in March 2020.

However, even at a level not seen since before the abolition of ET fees in July 2017, receipts continue to exceed the number of disposals, and accordingly the backlog of cases is now creeping back towards the peak seen in early 2021.

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Basic Income: What’s occurring?

News this week that things may not be working out for some of the employers taking part in what has been billed as the world’s biggest pilot of a four-day week (4DW) got me wondering what has come of the much-hyped trials of that other favourite of the Fringe Left: a Universal Basic Income (UBI).

The two “bold and radical” policy ideas are inextricably linked, not least because advocates of the 4DW invariably rely on the introduction of a UBI when seeking to explain how a 4DW could be introduced across the UK economy without slashing the weekly income of the millions of hourly-paid workers on zero-hours contracts or other forms of precarious employment.

As for those UBI trials, back in 2018, when publishing the third in a series of reports arguing for the introduction of a UBI, the RSA (then still led by Matthew Taylor) said:

Realising Basic Income is published as four localities in Scotland are considering the feasibilities of UBI pilots (with other Basic Income related experiments underway in Finland, Kenya and elsewhere). Support for these feasibility studies from the Scottish Government is indicative of just how far this discussion has moved from fringe to mainstream.

Indeed, in late 2017 the Scottish Government had announced £250,000 of funding over the financial years 2018/19 and 2019/20 to enable four local authorities – Fife Council, City of Edinburgh Council, Glasgow City Council and North Ayrshire Council – to work together to “research and explore the feasibility of local pilots of Basic Income”.

Scotland may well have been “united in curiosity”, but sadly all that came of these ‘feasibility studies’ was an October 2020 conclusion that “whilst it is desirable to pilot a UBI in Scotland, it is currently not feasible due to substantial challenges associated with institutional arrangements. In short, no one level of government can pilot a UBI without substantive and complex legislative, technical and delivery changes.” Since then, there appears to have been a conference – not just any conference, but “the world’s biggest Basic Income conference!” – in August 2021. And, well, not a lot else.

Long before then, the ‘experiment in Finland’ cited by the RSA had concluded and been dismissed as “a major flop” – though UBI advocates insist that “Basic Income never failed us. Our ‘jobs’ did”. Wrong leaves on the line, I guess.

Whatever, four years on from the the discussion having ‘moved from fringe to mainstream’, the hard truth is that neither of the bold experimenters Finland and Scotland is anywhere near piloting – let alone introducing – a UBI. So, step forward … Wales.

Yes, last month the Welsh Government launched a £20 million, three-year experiment offering a Basic Income of £1,600 per month to about 500 18-year-old care leavers. And, while it may not be the biggest UBI trial in the world, the Welsh Government reportedly believes “the cash offered is the highest amount provided on a Basic Income pilot anywhere in the world”. Mwyaf hael yn y byd!

Presumably, it will be 2025 or even 2026 before we discover whether this £20m experiment was a key moment in the emergence of “a resilient and globally responsible Wales” or just another fflop mawr. By which time we might even know the outcome of the world’s biggest pilot of a 4DW.

But don’t hold your breath. And please don’t mention Iceland.

[Update, 17 October: According to a report in The Times, 86% of the “more than 70” companies taking part in the world’s biggest trial of a four-day week have said, in response to a mid-term survey by the trial organisers, that they are “likely to consider maintaining the shorter working week” beyond the six-month trial. Which sounds quite good, until you get to the bit about only 41 companies having responded to the survey. So, that’s actually just 35 (less than 50%) of the “more than 70” trial companies saying they are “likely to consider maintaining the shorter working week”. Which doesn’t sound quite so good.]

From A Basic Income for Scotland, RSA, May 2019
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Bogus news stories about ET claims reach record high

Yes, it’s the Silly Season, which Wikipedia helpfully defines as “the period lasting for a few summer months typified by the emergence of frivolous news stories in the media”. So, naturally, a ‘news story’ that the Covid-related trend towards working from home (WFH) and hybrid working has led to a massive increase in the number of employment tribunal claims for bullying is all over the supposedly specialist Human Resources media.

The number of employment tribunal claims lodged [sic] citing allegations of bullying has increased by 44 per cent over the past 12 months, reaching record highs, new research has revealed. The analysis, conducted by law firm Fox & Partners, found that bullying claims [sic] increased from 581 to 835 between March 2021 and March 2022.  The firm dubbed the findings a “canary in the mine” moment for many organisations, suggesting this may signal that leadership teams are failing to address a growth in toxic work cultures. People Management (the voice of the CIPD)

Ivor Adair, partner at Fox & Partners, said: “Tackling workplace bullying is no easy task, particularly in changing work environments. The record number of bullying claims [sic] is a worrying sign that some leadership teams have struggled to maintain healthy workplaces during the shift to hybrid working.” Personnel Today

Research from law firm Fox and Partners found there were 835 tribunals relating to bullying in 2021/22, up 44% from the previous year. The number of claims [sic] has more than doubled since the 412 recorded in 2017/18. Hybrid working environments, the report suggested, have brought new forms of bullying to the workplace, such as leaving colleagues out of remote meetings, comments over video calls, and gossiping over messaging platforms. HR magazine

“WFH may not be working for everyone. A record number of bullying claims [sic] have featured in lawsuits at the UK’s employment courts over the past year, in a sign that while working from home is welcomed by many, it’s also contributing to tensions for others.” Bloomberg UK

There is just one teeny weeny problem with this story: neither Fox & Partners nor anybody else know how many employment tribunal claims citing allegations of bullying were made in each year since 2017/18, as ‘bullying’ is not a jurisdiction identified in the official tribunal statistics published by the Ministry of Injustice (and the Ministry has not yet published any breakdown of new tribunal claims by jurisdiction for 2021/22). And, if we do not know how many claims there have been, we cannot say that there has been any increase. And we certainly cannot ascribe that increase to WFH or hybrid working.

No, all that Fox & Partners have done is conduct a word search for ‘bullying’ on the HMCTS online register of employment tribunal decisions. But the ET decisions on the register are only a small proportion – about one in eight – of all ET claims made, as the great majority of claims are settled or withdrawn without a tribunal decision. For example, in 2017/18 there were 110,098 ET claims, but only 13,560 ET decisions were published on the register. And in 2020/21 there were 117,926 claims, but only 14,579 decisions were published on the register.

Furthermore, the number of ET decisions containing any particular word or phrase such as ‘bullying’ or ‘numpty employment lawyer’ is of course influenced by the total number of ET decisions, which goes up and down (in 2021/22, just 12,680 decisions were published on the register, down from 25,895 in 2019/20). In other words, what would matter (if it mattered at all) is not the number of decisions containing that word or phrase, but the proportion of all decisions containing that word or phrase.

So, while the Fox & Partners ‘research’ (which I replicated in about five minutes on the register earlier today) tells us that the number of decisions including the word ‘bullying’ increased from 412 in 2017/18 to 708 in 2019/20, it overlooks or deliberately ignores the fact that the total number of decisions published on the register also nearly doubled, from 13,560 in 2017/18, to 25,895 in 2019/20. So what is presented as a 72% increase, from 412 to 708, was actually a decrease, from 3.04% to 2.73%.

In any case, an ET decision can of course include the word ‘bullying’ without the ET claim having had anything to do with the Covid pandemic, working from home, or hybrid working. Indeed, it can include the word ‘bullying’ without the claim having involved any allegation(s) of bullying – it could just be an incidental reference to the employer’s Harassment & Anti-Bullying Policy, for example. (Between 2019/20 and 2021/22 there was a 1,494% increase in the number of ET decisions containing the word ‘hybrid’, but … well, I’ll leave you to think about why that was). If you don’t believe me, take a look at the first few decisions that come up if you do a word search for ‘bullying’ in 2021/22. And do feel free to let me know how many decisions you can find in which the claim related to leaving colleagues out of remote meetings, making comments over video calls, or gossiping over messaging platforms.

Fox & Partners would have needed to read through each of the 835 decisions in 2021/22 that include the word ‘bullying’, and those in other years, and tell us how many of the associated claims actually involved allegations of bullying linked to WFH or hybrid working. But they haven’t done that. Because that would have taken (a lot) more than five minutes.

All Fox & Partners have done is spot a random and meaningless increase in the number of ET decisions (not claims) containing the word ‘bullying’, and then assert a link to the pandemic-related trend towards WFH and hybrid working. But that ‘link’ is entirely spurious. Fox & Partners have not identified any upward trend in the number of ET claims citing allegations of bullying, let alone any upward trend in the number of ET claims citing allegations of bullying linked to WFH or hybrid working. So the resultant media coverage is not just frivolous, but entirely bogus.

Fox & Partners may just as well have asserted a link between the trend towards WFH and the 73% increase in the number of ET decisions containing the word ‘chocolate’ in 2021/22. Or the 46% increase in the number of ET decisions containing the word ‘penis’. Well, it stands to reason, doesn’t it? The trend towards WFH is allowing everyone to get their dick out during office hours.

WE INTERRUPT THIS BLOG TO BRING YOU AN IMPORTANT PUBLIC SERVICE ANNOUNCEMENT: CORRELATION DOES NOT IMPLY CAUSATION

Yes, as any regular reader(s) of this blog will have spotted, this is just another variant of the old ‘Get Our Law Firm’s Name in The Papers in The Hope of Drumming-up Some Much-needed Business by Issuing a Press Release With an Eye-catching But Totally Rubbish Story About ET Claim Numbers’ trick.

And, as documented on this blog, numpty journalists fall for it every time, mindlessly typing out the law firm’s press release and hitting the ‘publish’ button. My favourite is still the 13,000% increase in age discrimination claims in Scotland in October 2020, which got typed up by numpty journalists at the Guardian, Daily Express, Telegraph, Daily Mail and Yorkshire Post, as well as at People Management and Personnel Today. Fox & Partners are regular performers of the trick, as are GQ Littler, who did a similar search for ‘flexible working’ on the register of ET decisions in January (you can even just tick a box to search decisions for ‘flexible working’).

The Silly Season will soon be over. But unscrupulous employment lawyers will continue to use this tired trick, and numpty journalists will continue to fall for it.

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So. Farewell then, BEIS minister Paul Scully

With apologies to EJ Thribb

Update: Sadly, Minister Scully did not get to do much, if any, levelling-up as Minister of State at the DLUHC, as on 27 October he was demoted back to Parliamentary Under-Secretary of State, moved on to the Department for Digital, Culture, Media & Sport, and stripped of his Minister of State-level job as Minister for London, which he had retained when promoted from BEIS to DLUHC in July.

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Good Law Project: I won!

Yes, just weeks after my blog post on the thin winnings of Jolyon Maugham’s Not Very Good Law Project was bigged up by Guido Fawkes and Spiked, the fox-battering QC has responded by publishing a spreadsheet – a spreadsheet! – seeking to demonstrate his record of success.*

There is very little information in the spreadsheet that wasn’t available previously. And – somewhat surprisingly – there is absolutely no information at all about how much money was raised for and spent on each case. So much for transparency, eh? But on the basis of the information provided, I have made a few minor revisions to the tables set out in my blog post of 9 May.

One crowdfunded case – Vote Leave funding (2017) – that I had credited to the GLP as a ‘win’ turns out to have been a ‘loss’ (a win for GLP in the High Court in June 2018 was overturned by the Court of Appeal in September 2019). And in light of the information set out in the new GLP spreadsheet I am now crediting two minor cases – Capita and Monocle (both 2018) – as wins for GLP.

There is, of course, a lot more green shading in the GLP spreadsheet than there is in my (revised and consolidated) table of the 47 crowdfunded cases since 2017, below. But that is partly because Jolyon takes credit for the work of Gina Miller and others in 2016 (when the GLP did not even exist), and the work of Marcus Rashford in 2020, and partly because Jolyon takes credit for any (welcome) change of policy that happened to occur after he sat down and wrote a pre-action protocol letter. Maybe the QC after Jolyon’s name stands for questionable-cause logical fallacy. Or just Quite Conceited.

Case outcome tracker: Q1 2022, Good Law Project, June 2022

Anyway, fwiw, here is my revised, updated and consolidated table, setting out the sum raised for and outcome (to date) of the 47 crowdfunded cases since 2017 (including one – Public spaces – launched after my blog post of 9 May). With nine of these crowdfunders still open, the grand total raised to date has reached £4,240,624. But do bear in mind that, as noted in updates to my 9 May blogpost, even that astronomical sum is dwarfed by the more than £6 million that the GLP has garnered in direct donations and grants since 2017.

* I do hope you got my irony here. Unlike Jolyon, I do understand that correlation does not imply causation.

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Employment Tribunal stats: Welcome back, we’ve missed you!

As noted previously on this blog, the introduction of a new Case Management System in March 2021 has led to a dearth of official statistics on Employment Tribunal receipts and disposals. And, in January this year, the President of the Employment Tribunals in England & Wales, Judge Barry Clarke, noted that this ongoing ‘data silence’ was “a cause of immense frustration to the leadership judges of the Employment Tribunals. For obvious reasons, the lack of reliable data was significantly impairing operational and strategic decision-making.”

In October, HMCTS did release some limited data on Employment Tribunal receipts (but not disposals) for the period August 2020 to August 2021, but this simply led some – including yours truly – to question whether it was credible that the number of new cases had fallen by 42% between November 2020 and May 2021 – that is, just when the new Case Management System was being introduced.

Well, yesterday HMCTS not only included some data on both Employment Tribunal receipts and disposals in the latest set of quarterly tribunal statistics, up to March 2022, but also published some new monthly management information up to April 2022. And this confirms not only that the number of new cases did indeed fall by 42% between November 2020 and May 2021, but that it continued to fall further: in December 2021, the number of new cases (2,298) was 51% down on that in November 2020 (4,669). And we have to assume that HMCTS is now pretty confident of the reliability of these figures – so, sorry for doubting you, HMCTS peeps.

In the first few months of 2022, the number of new cases has bounced back a bit, but the new data confirms that the number of new cases has fallen significantly since late 2020, and is now running somewhat below pre-Covid levels.

Anyway, that’s the good news. The bad news is that, with disposals also down slightly, this pretty dramatic fall in new case numbers has not (yet) been matched by a significant fall in the deeply problematic backlog of cases, which – after receding from its Covid-induced peak in late 2020 – has flatlined over the last four quarters. This needs to change.

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Maternity leave: Lies, damn lies and statements by BEIS minister Paul Scully

In recent years, BEIS minister Paul Scully – a strong contender for the hotly-contested title of Most Idiotic Minister in the Johnson Government – has repeatedly and brazenly claimed that “the UK’s maternity leave system is one of the most generous in the world”. Here he is in June 2020, for example, defending the Government’s claim that “the UK’s maternity leave offer is among the most generous in the world” while giving oral evidence to the Petitions Committee of MPs. And here he is two years later, in February 2022, mindlessly regurgitating that claim in the House of Commons.

And, last week, Minister Scully was at it again. In Answer to a Parliamentary Question tabled by Labour’s shadow employment rights minister Justin Madders MP, the Minister boldly asserted that “the UK’s maternity leave entitlement is one of the most generous in the world, with employed women entitled to 52 weeks of maternity leave, of which 39 [weeks] are paid”.

Doh! The UK’s paid maternity leave entitlement is only “one of the most generous in the world” if you overlook the teeny-weeny fact that, in most other comparable countries, most of the statutory paid leave available to working women who have just given birth is called parental leave, not maternity leave. And, in the UK, new mothers get no paid parental leave. Zilch. Nada. Rien. Here’s a chart that even Minister Scully should be able to get his head around.

Yes, in terms of the duration of paid maternity/parental leave available to new working mothers, the UK’s maternity leave system is more generous than that in Belgium, Iceland, Ireland, Malta, Portugal and Switzerland. But it is less generous than that in Austria, Bulgaria, Canada, Denmark, Estonia, France, Germany, Hungary, Italy, Japan, Latvia, Norway, Poland, Romania, Sweden … need I go on?

And do new mothers in Austria, Canada, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Italy, Japan, Latvia, Lithuania, Norway, Poland, Romania, Slovenia and Sweden feel hard done by because they get fewer weeks of paid maternity leave than women in the UK? Of course they don’t.

So, if the UK’s maternity leave system isn’t “one of the most generous in the world” in terms of the duration of the paid leave available to new mothers, maybe Minister Scully had another measure in mind? Because, of course, the overall ‘generosity’ of any system of paid leave is a combination of the length of the leave entitlement, and the rate at which it is paid.

The OECD uses two alternative measures of the overall ‘generosity’ of paid maternity/parental leave. The first of these is the average payment rate, i.e. the % of previous earnings replaced over the length of the paid maternity/parental leave entitlement for a woman earning 100% of average national full-time earnings. And, as the following chart clearly shows, on this measure the UK’s maternity leave system is very far from being “one of the most generous in the world”.

The second measure of the ‘generosity’ of paid maternity/parental leave used by the OECD is full-rate equivalent, i.e. the duration of paid maternity/parental leave in weeks if it were paid at 100% of previous earnings. And, as the following chart shows, some countries (Finland, Hungary, Latvia, the Netherlands) do better under this measure than they do under ‘average payment rate’. But the UK … not so much.

In short, Minister Scully’s claim that “the UK’s maternity leave offer is among the most generous in the world” is as delusional as the Prime Minister’s defence of his attendance at boozy parties in Downing Street during lockdown. The Covid regulations did not allow ‘work leaving dos’ or ‘morale-boosting speeches by the boss’, and at less than half of the legal minimum wage the UK’s statutory maternity and parental pay of just £156.66 per week is not going to secure the UK a top slot in international league tables.

But with a new parliamentary e-petition calling (somewhat modestly) for that pitiful rate of pay to be increased in line with the cost of living heading towards the threshold for a Westminster Hall debate of 100,000 signatures, it may not be long before Minister Scully is back in the House of Commons, telling MPs that the UK’s maternity leave offer is already among the most generous in the world. And – who knows? – by then the Minister may be able to tell us the outcome of the review of the UK’s chronically failing Shared Parental Leave scheme that his officials started more than four years ago.

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The Taylor Review is dead, long live the Warman Review!

So, just two days after shelving a repeatedly promised Employment Bill intended to deliver a raft of policy pledges made as long ago as February 2018, Boris Johnson has launched a new review into the future of work. Because the 2017 Taylor Review of Modern Working Practices didn’t tell us enough about “the implications of new forms of work on worker rights and responsibilities”, obviously.

The Terms of Reference for the Warman Review appear to have been written by an intern at the Cabinet Office. On their first day in the job. But that doesn’t matter because, thanks to an interview that the Prime Minister gave to the Daily Fail on Friday, we already know that the Review will conclude that working from home involves far too much making coffee and walking slowly to the fridge to hack off a piece of Beaufort d’été, and everyone should just get back to the office.

Meanwhile, some family rights groups are doing what ineffectual BEIS officials want them to do: provide some cover for ineffectual BEIS ministers by bigging up the possibility of Government-backed Private Members’ Bills designed to deliver some of the Government’s abandoned policy pledges ahead of the PMB ballot later this week (a possible ‘strategy’ first flagged by The Times on 2 May, and by yours truly on this blog).

Of course, the Employment Bill’s omission from the Queen’s Speech on 10 May does not mean that ministers cannot introduce the Bill – or one or more mini-Employment Bills – in this parliamentary session. Governments routinely introduce new legislation that wasn’t mentioned in the previous Queen’s Speech. But with three other (sizeable) Bills in the new legislative programme, it does seem unlikely that BEIS ministers will find the time and energy to pull rabbits out of hats before a general election in 2023.

In any case, the principal obstacle to progress on the outstanding promises on workers’ rights is not the Johnson Government’s lack of parliamentary time but – as Women & Equalities Committee chair Caroline Nokes MP noted on Friday – its “lack of will or care to foster a fairer and more equal society”.

Whatever, in the House of Commons on Thursday – during the Fairness at Work-themed debate on the Queen’s Speech – equalities minister Kemi Badenoch insisted both that the Government doesn’t need to have the Employment Bill that it has repeatedly promised, and that the Government is still committed to having the repeatedly promised Employment Bill that it doesn’t need.

Kemi Badenoch MP, House of Commons, 12 May 2022

Update, 22 September: So, the Warman Review has been shelved.

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