Lawyers shouldn’t be robbing the vulnerable of their rights

The law touches all aspects of our everyday lives. But rarely so crucially as in the key relationships we have with others – with the landlord we pay for shelter, the employer we rely on for our income, the grocer from whom we buy food.

To them the law says, “you have freedom to contract – but only so far.” For you work you shall be paid a minimum wage. Your landlord cannot turf you out of your home on a whim. You will be protected from food that is not safe to eat.

But it’s never that simple of course. Legal protections created in theory are often found wanting in practice. What use is a right unless we know it exists? How can we assert it when confronted with a powerful and obdurate counterparty? Is the law strong enough to cause the counterparty to care whether he breaks it?

Sitting on my desk is a contract between a major passenger transportation firm – I will not name it – and the drivers it uses. It imposes an obligation on drivers to indemnify the firm against the obligation to pay minimum wage or national insurance contributions.

Think about that for a second. The obligation to pay minimum wage is the firm’s. So too the obligation to pay employer’s NICs. The law is clear these obligations cannot be transferred. But still the contract pretends that, if the driver asserts the protections Parliament has given to him, the cost will fall on him. Along with the firm’s legal costs of resisting the assertion. And of meeting and defending any action brought by the Government. A failure to pay minimum wage can carry criminal sanction – and the contract also puts the cost of defending that prosecution on the driver.

And clauses enacting a pretence are not uncommon. Assured shorthold tenancies – the most common type of tenancy agreement for those obliged to rent from private sector landlords – frequently pretend the landlord has a power to terminate a lease which ignores the protections given to tenants by the Housing Act 1988.

When drafting contracts for the powerful which regulate relationships with ‘normal’ people – in leases, in consumer contracts and, most often, in contracts with workers – lawyers insert clauses that are not merely unenforceable but which they know to be unenforceable.

Why?

Not because they lawfully protect that lawyer’s clients. The fact they are unenforceable means they offer no legal protection. They are drafted for a different purpose. Their aim is to trick those who do not know the law. They attempt to fool the unsophisticated into believing they do not have the rights Parliament has given them. Their purpose is to undermine the rule of law and to thwart statutory protections.

But solicitors have a professional obligation to “uphold the rule of law and the proper administration of justice” and “to act with integrity”. Barristers similarly have obligations to “act with honesty and integrity” and to “not knowingly or recklessly mislead or attempt to mislead anyone.”

For myself, I do not see how the drafting of an unenforceable clause in a contract with a counterparty who is a regular person can be said to be consistent with these obligations. This practice has gone on for too long – it is time for regulators to remind lawyers of their duties.

[This piece was first published by The Times on 19 July 2018].

Six thoughts on Labour and Brexit: a shadow Minister responds

Paul Blomfield, Shadow DExEU Minister, emailed to a constituent this response to my criticism of Labour policy on Brexit. He has indicated he is happy for it to be made public. I don’t intend to respond to it here. My views remain as expressed. But it is obviously desirable, in a week in which support for Labour amongst those who voted Remain in 2016 has dropped 7% (figures here and here), that Labour does its best to address perceptions it is now the party of Hard Brexit.

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I campaigned tirelessly for a vote to remain in the European Union and was bitterly disappointed by the result. However, for the reasons I outlined on Saturday, I accept the result of the referendum and see my role as preventing an extreme Tory Brexit. In the sense that the referendum was, like all referenda in the UK are, advisory, Mr Maugham is right that Labour made a choice to respect the result. I do not pretend that I think that Brexit is a positive thing for the country, however, I fear that there would be serious detrimental impacts for faith in our democratic institutions if we were simply to ignore the referendum result and I believe we must mitigate the damage as much as possible. I believe that we should remain as closely allied to the EU as possible and made that point in an article for the Yorkshire Post.

As regards his argument that we should challenge it on grounds of validity. I have been following the allegations about Russian interference in the election and have challenged lies about Brexit, both during it and those made by the Government since it. If a breach of electoral law is found to have occurred, the appropriate sanctions should be taken, of which the rerunning of the vote is not one. Any misuse of data is a serious breach that must be investigated and dealt with, but it does not necessarily follow that they affected the referendum result.

I do not accept his rather strained argument that Theresa May wants a softer Brexit and Jeremy Corbyn wants a harder Brexit. Even he goes on beyond his top line to elaborate, saying that he means in comparison to party members’ and MPs’ wishes. It is not right to say that there is ‘no meaningful difference between the outcome being sought by the Conservative and Labour parties on Brexit’. He also says: ‘Both want to trade with the Single Market. Both want to be free to make their own trade policy in a manner that rules out a customs union.’ Firstly, it is not true to say we do not want a customs union. On the contrary, in February Jeremy Corbyn set out our vision of a comprehensive customs union with the EU replicating current arrangements. This is in direct contrast to the Government. I spoke about this recently, which you can read here. Moreover, it is somewhat misleading to suggest that our stance on the Single Market is identical to that of the Government’s. We have made clear we want the closest possible relationship with the Single Market, accepting jurisdiction of the CJEU and seeking continued membership of the agencies and programmes we have built together over forty-five years. Therefore I strongly challenge his sixth point that “Labour has chosen not to push for a softer Brexit.”

He goes on to argue that, in our attempts to secure a meaningful vote for Parliament, we have “consistently refused and refuses to say what it would do with Parliamentary control […] It offers nothing”. As you can see from these speeches on the amendment that my colleagues, Matthew Pennycook, and Shadow Secretary of State, Keir Starmer, have made on it, our position was that, in the event that Parliament rejects the deal on offer, it should be for Parliament to determine the next steps, whatever they may be. I do not think it would be wise for us to commit to a certain path at this stage, when we don’t know what the final deal will look like. We have been clear that we would vote it down if it does not meet our six tests. He guesses that we would seek to force a general election and that may come to pass but, due to the Fixed-Term Parliaments Act, an early election can only take place before 2022 if at least two-thirds of the House votes for one or if a motion of no confidence is passed and an alternative government is not confirmed by the Commons within fourteen days.

I do not follow his argument, “Labour cannot win its battle with its Remainers”. I agree that the party membership has a vital role to play and Conference is the policy-making body of the party. I have taken part in a number of meetings like that on Saturday and I have visited a number of CLPs to discuss our policies with members and want to ensure members’ views influence and shape our policy. That is how we can ensure that members have a “real say, the final say in deciding on the policies of our party”, as Jeremy said.

I hope that I have demonstrated why I disagree with the author’s view that we are pursuing a hard Brexit and that, on the contrary, we are actively opposing a disastrous Tory Brexit and a ‘no deal’ scenario and, if we were in Government, we would be seeking the closest possible relationship with the EU as partners, if no longer as members.

Six thoughts on Labour and Brexit

First, Labour’s decision to ‘respect the result’ of the Referendum is a choice. It has chosen to respect the result because, whatever the reason, it wants to.

It is true that people believed they were voting for a result that would be delivered. And – although a legally binding referendum would likely have had further safeguards – all things being equal my own view is that Labour would have been politically bound to deliver the result of this advisory referendum. But all things are not equal.

Both the official and the unofficial Leave campaigns broke the rules in material ways – they cheated, not to put too fine a point on it. There is powerful evidence of Russian interference in the referendum. Demonstrable and deliberate lies were told by the Leave campaigns. The promises that the Leave campaigns made will not be delivered. I accept that the assessment of the political saliency of these things is a matter of judgement. But it cannot sensibly be argued that it would be impossible for Labour to say ‘the result is not valid; the will of the people was not discovered by this flawed exercise.’

These factors open the door for Labour to say the result lacks validity. Labour has made a choice not to walk through that open door.

Second, Theresa May is pushing for a softer Brexit and Jeremy Corbyn is pushing for a harder Brexit.

For myself, I see no meaningful difference between the outcome being sought by the Conservative and the Labour parties on Brexit. Both want to trade with the Single Market. Both want to be free to make their own trade policy in a manner that rules out a customs union. Both want control over immigration in a way that rules out membership of the Single Market. In the circumstances I think it is reasonable to say that both want a Hard Brexit. But the point I am here making is a different one.

Theresa May’s party has a very large contingent that is prepared to leave without a deal. Her battle is with the Ultras in her party that would deliver that outcome and she seeks a ‘softer’ Brexit than they want. The Labour Party by contrast is dominated – its membership, its voters, its constituencies such as trade unions – by those who want a soft or no Brexit or a vote on the deal (or on whether to leave without a deal). Jeremy Corbyn’s battle is with that dominant faction in his party – and he seeks a harder Brexit than they want. This is (it seems to me) beyond sensible debate.

He is battling for a harder Brexit, she is battling for a softer one.

Third, Labour cannot win its battle with its Remainers.

The debate on social media between those who see a Corbyn government as more important than stopping Brexit (“Pro Corbyns”) and those who see stopping Brexit as more important than a Corbyn government (“Pro Remains”) is a debate the Pro Corbyns cannot win.

Labour is a political party. To win Government for their man, Pro Corbyns needs a broad constituency. As things stand, Pro Remains are a campaigning group. Their immediate goal is to force Labour to change its position on Brexit.

Pro Remains lack sufficient representation in Parliament. Without it they cannot achieve their goal. So their strategy must be to cause the only party who might change its position to do so. And, sadly, the only way to cause Labour to change its position is to ensure the political cost of pursuing its present stance is greater than the political cost of changing it. And if Pro Remains are toxifying Labour’s attachment to its present stance they are winning. They will be forcing Labour to re-evaluate that stance. If Pro Remains are also toxified that does not matter – or does not matter at this stage – because they do not need a broad constituency to achieve their immediate goal.

(In a better world, the Pro Remains strategy would be to ask Labour to look to the interests of the country, or to the need to fund public services, or to protect the jobs of working people, and so. But sadly we are not in that world).

Labour cannot win its battle with its Remainers.

Fourth, by aligning his position against that of Labour’s members, Jeremy Corbyn is dishonest and hypocritical.

Corbyn campaigned and won the leadership on a platform of allowing members to choose Party policy. He said (you can see him saying it here at 31.07)

“One firm commitment I make to people who join our Labour Party is that you have a real say, the final say in deciding on the policies of our party.

“No-one – not me as Leader, not the Shadow Cabinet, not the Parliamentary Labour Party – is going to impose policy or have a veto.”

Yet Labour’s position is not remotely aligned with what the polls say its members want. And Labour is reported to be battling, yet again, to prevent its Brexit policy coming for a vote before Party Conference.

Corbyn’s position is hypocritical and dishonest.

Fifth, Labour offers nothing of substance on Brexit.

It is true that Labour fought hard for Parliament to have a say on whether to approve the Brexit deal. And with the help of Tory rebels it won a vote on that subject in December. And it was only when Tory rebels capitulated last month that it lost a vote that would have strengthened Parliamentary control.

But Labour has consistently refused and refuses to say what it would do with Parliamentary control. It has not said it will vote to withdraw the Article 50 notice if the Brexit deal is unacceptable to Parliament. It has not said it will vote for a referendum if the Brexit deal is unacceptable. It offers nothing.

The best guess – and it can only be a guess – is that if the Government’s deal is voted down Labour would seek to force a general election. But that vote is likely to take place in late January 2019 (see section 13(10)) and there would be no time after the result was known, and after any General Election was called and run, for Brexit to be affected by the outcome. And if this guess is right, it suggests Labour’s fight for a meaningful vote is more about Labour’s narrow interest than about Brexit.

Labour offers nothing of substance on Brexit.

Finally, sixth, Labour has chosen not to push for a softer Brexit.

To be in opposition is to have a minority in Parliament. This does not stop an opposition campaigning or voting for its policies. And sometimes those votes or campaigns succeed.

Brexit is no different. Labour could develop a deliverable alternative to the Tories’ plans. It could negotiate with the EU to ensure that alternative was acceptable. It could then campaign for that alternative in the country and in Parliament. That is what an opposition does: it puts forward policy proposals and seeks to persuade the country and Parliament that those proposals are desirable and deliverable. It hopes to force a u turn on the Government

Labour, in the case of Brexit, has completely absented itself from that process. It has not developed a deliverable alternative. It has not sought to negotiate and agree it with the EU. And it has not sought to persuade the country and Parliament of the value of that alternative.

Labour could have pushed for a softer Brexit. It has chosen not to.