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.

***

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.

Legatum and Hypocrisy

This may have passed you by. Christopher Chandler, and members of the Legatum group (“Legatum”), he founded, have been seeking to silence his critics.

Here is an apology published by the Guardian:

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That apology was tweeted out by Legatum with this commentary:

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But they didn’t stop there.

Legatum also threatened to sue a small online political site ‘Left Foot Forward’ causing it to issue a retraction. I am also aware that legal proceedings have been threatened against a tiny pro-EU campaigning organisation. And there may well be others.

You should read Left Foot Forward’s retraction. This are matters of real triviality. Is threatening to sue a modestly sized website the behaviour of a group which “champions the freedom of the press”? Or is it the conduct of a group which is perfectly prepared to use its wealth and power to suppress criticism of the man it identifies as its founder?

I ask because, back in December last year, Legatum issued a statement containing a false and ugly smear of me:

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At the time, I stated that that allegation was in error. And I asked Legatum to specify what “dirty tricks” I was guilty of.

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That request was ignored. Was that the behaviour of an organisation which believes that “with freedom comes responsibility”?

When I saw that an apology had been demanded of the Guardian for its treatment of Christopher Chandler I wrote to him. You can see my letter here.

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I referred to Christopher Chandler’s objection, as revealed by the Guardian’s apology, to the accusation of hypocrisy. I referred to Legatum’s false and ugly smear of me. I assumed Mr Chandler would want that smear to be withdrawn. And for an appropriate person at Legatum to apologise for it. And I undertook to keep the apology private. I did not seek damages. I did not seek his or Legatum’s embarrassment. I asked him to behave honourably and decently.

Some days ago I received this response.

You will note it is written on behalf of the “Legatum group of companies” to whom it claims, falsely, that I wrote. Christopher Chandler, who sets great store by his reputation, has simply not bothered to respond.

That letter:

(1) of the “dirty tricks” smear, it claims (absurdly) that it was not directed at me;

(2) it attacks me for the questions that I have raised and the opinions that I have expressed about Legatum’s conduct; and

(3) it accuses me of hypocrisy in relation to my conduct on tax avoidance.

Let me say that I am happy to defend my conduct and I accept it is a legitimate matter for reasonable open public debate. I have addressed my position on tax avoidance here. And I am happy to confirm I took advice from a QC specialising in charity law before expressing the view I did that the Legatum Institute’s conduct was likely on the wrong side of the law.

Legatum, on the other hand, has used its money and the power that comes with it to stifle criticism of Christopher Chandler advanced by media with even modest reach whilst claiming to “champion the freedom of the press”. Christopher Chandler has failed to apologise or acknowledge I am entitled to an apology for a false and ugly smear whilst Legatum trumpets the claim that “with freedom must come responsibility”. Christopher Chandler has objected to suggestions of “hypocrisy over Brexit” but Legatum behaves hypocritically when it comes to press freedom.

Legatum’s record suggests I may face legal threats or worse for writing this. But it and Christopher Chandler are powerful and divisive and we must be free to discuss them and, if they are hypocritical, we must be free to call them out.

That, as Legatum might say, is what “champion[ing] freedom of the press” looks like.

My speech on accepting the Praeses Elit 

Earlier this afternoon, at Trinity College Dublin, I was awarded the Praeses Elit (2018).

The Praeses Elit was established by former President of Ireland, Mary Robinson, and is awarded by Trinity College Law Society to “those who have advanced discourse in their line of work, and who have been a source of inspiration for young people everywhere.”

Recent winners include Nobel Prize winner F W de Klerk (2017), President of the Supreme Court Baroness Hale (2016), and Bob Geldof (2016).

What follows is the text of my speech.

***

It’s a profound pleasure to be here in Trinity College.

It’s an institution I have always felt an affinity with. I was here, in your chapel, to see two of my closest friends marry – Dominic Clarke and Ailis Ahern (she has a proper name, a Gaelic name but I’m not going to massacre it in front of you).

Dominic and Ailis met each other, and I met them, on an Erasmus year. And what a year it was: European constitutional law taught to us by a willowy and rather bookish young man called Koen Lenaerts, now President of the CJEU. And a stage in the Cabinet of the Belgian Advocate General, Walter van Gerven – perhaps the best lawyer I’ve ever known. It was the making of me as a lawyer.

And, as students we ate together and we drank together and we – let me call it “socialised” together. And we put aside the divisions of nations and we felt part of something bigger, something new. We felt optimism and we felt hope.

I went on to make amends for the crimes of my misspent youth – studying as an undergraduate law rather than a real humanity – with an MA and a dissertation on Samuel Beckett. If you ever find yourself struggling to articulate a thought in a tutorial, take comfort in this. Trinity’s very own Samuel Beckett won a Nobel Prize for performing the inadequacy of language. As an aside, I can’t read lines like the opening of Murphy: “The sun rose, having no alternative, on the nothing new” without also thinking how great he’d be on Twitter.

Being here, as Samuel Beckett was, makes me hugely proud.

So now to the work for which you have chosen to award me this splendid thing.

I am often asked why I do it.

And as I stare at the battered wreckage of my once lucrative professional practice, I ask myself that same question. And seeing in the mirror the sleep-deprived return of teenage acne – now splendidly framed by an entirely silver head… Well, that does not distract my mind from the question. And then I think of the only few snatched hours with my three daughters and a wife I love…

But I could no more stop the work that I am doing than I could grow wings.

Because I often talk about what I do – and only half in jest – as the result of a kind of pathology.

Its roots lie, I am sure, in a childhood where I was mistreated and I was powerless.

But now I am not.

I have the meretricious authority that comes from being a Queen’s Counsel. I have the platform of a stable family and the reach of approaching 80,000 twitter followers. I have the intermittent support of one of the best newspapers in the world. And I have the enormous advantage of the intellectual freedom that comes with self-employment.

Let me briefly transmogrify into one of those old men who come to the places where the young people are and tell them what to do. Have a good partner and nothing is impossible. Fight for a life where you are chiefly accountable only to your conscience. You may not be as rich – but you will always be happy and you will always be fulfilled.

So I ask myself, with all of those advantages, if I will not stand up to what is happening to my country? Then who will? Who are these people who are better placed than me?

Because I hate what is happening to the United Kingdom. I cannot understand its increasing indifference to the vulnerable. I am terrified by its contempt for democracy. I abhor the corruption of its institutions.

But alongside all of this, what is happening, what this unparalleled moment of democratic crisis also portends, is a kind of optimism.

Because we were complacent. Others, we thought, would sort it out. Scientists would fix global warming. Our social services would not tolerate the sexual trafficking of children. Healthcare would be there for those who needed it. Tax dodgers would be brought to book. Crime would not pay.

But now we know that that is not true. We know we must do it ourselves. And we have learned that lesson whilst there is time enough.

We must do it.

You must do it.

Meanwhile I reflect on that scene in Lord of the Rings with Gandalf on the Bridge at Khazad-dum. The fiery twin-horned Balrog approaches. And Gandalf – with his grey hair (and if you look really closely some prodigal teenage spots) – stands on the narrow bridge across a chasm.

And, although he knows the Balrog is too much for him, he plants his staff and his sword on the bridge and he says: “The dark flame will not avail you.”

“You shall not pass.”

Thank you.

A short response to Dominic Cummings

The judicial review brought by the Good Law Project caused the Electoral Commission to reopen its investigation into whether Vote Leave and Beleave were working together such that their spending must be aggregated. It has the evidence and it, rather than Dominic Cummings or Boris Johnson, will have to decide.

And, in consequence of that judicial review, no later than July the High Court too will have to decide whether the donations – if properly analysed there were donations – of services or cash by Vote Leave to Beleave count as Vote Leave’s spending.

The High Court may also comment on whether, as Dominic Cummings claims, the Electoral Commission gave him permission to make those ‘donations’. My own view is that it doesn’t much matter. My particular concern is not with whether Vote Leave had a reason to overspend but with whether the referendum took place as our Parliament mandated. If the Electoral Commission misunderstood the law and gave Vote Leave a permission it shouldn’t have then that will just make it all the clearer that the referendum was mismanaged; that it did not take place as Parliament intended.

So, on these matters, I don’t feel any particular need to respond to Mr Cummings’ excitable claims. The Electoral Commission and High Court can address them.

He does, however, advance three false allegations about me in this paragraph:

Accusations from the dishonest @Jolyon that Vote Leave did not have permission from the EC to give donations to other campaigns were disproved in open court just days ago when the documents were revealed, and @Jolyon was criticised by the court for his conduct.

First, he claims I denied the existence of the Electoral Commission advice. That, I am afraid, is just nonsense. The position I have consistently adopted is stated here (there are many other examples):

Indeed, my belief has been that some advice may well exist, see, of many examples I could cite, this:

Second, he asserts I am “dishonest”. He advances no basis for that allegation and there is none to be advanced.

Third, he asserts I was criticised by the court for my conduct. You can read the judgment here. It contains no such criticism.

He has no ball to play so ineptly he strikes out at the man.

But the ball is still there: did the referendum take place as Parliament mandated? Or was it mismanaged and unfair such that it cannot be said to have delivered the will of the people?

These are questions the Electoral Commission and the High Court will now answer.

The BBC and Jeremy Corbyn

Yesterday I tweeted this:

And I went on to explain why I would not give any further information. But I think there are further matters I can add that would add context and meaning to my tweet.

  1. What can I say about X? My “conversation” – which was conducted entirely in writing – took place with X. X is an individual at the BBC whose seniority and sphere of work is such that it could not sensibly be suggested that X is not properly qualified to speak on such matters.
  2. How did the conversation arise? The conversation took place subsequent to Jeremy Corbyn becoming leader and in the context of a broader conversation about his treatment by the press.
  3. Was the conversation in private? It was not explicitly in private. But I understood it to be part of a private conversation. At the time I asked X whether I could make public an anonymised version. X indicated a preference for me not doing so as to do so might cause a witch hunt.
  4. Why did I tweet what I tweeted? I think it is important I respect X’s wish that nothing be said that could conceivably enable X to be identified – including the particular language used by X. But I also think it is important to put this in the public domain – in particular in light of the BBC’s response to claims that it is coding into its imagery anti-Corbyn messaging. The tweet represents my attempt to balance those two matters. [Transparency note (i) I am a vigorous critic of Corbyn, especially on the subject of his stance on the EU (ii) I have said I agree with criticisms of the BBC’s use of images of Corbyn in front of St Basil’s cathedral].
  5. Can I say anything more about the substance of the conversation? X talked explicitly and unambiguously about how criticisms of Corbyn that the BBC could not voice were deliberately coded into imagery. X did not say that this was a general policy of the BBC or that there was some institutional directive to ‘smear’ Jeremy Corbyn. X clearly understood that X’s comments were sensitive for the BBC (see 3. above). [Note: my understanding of the BBC’s news/current affairs/politics output is that it is relatively heterodox.]
  6. Given that I will not release images of the written exchanges how can they be verified? I have said that I would swear a statement that my tweet above is true. I am also prepared to consider asking a lawyer, who would be bound by a professional duty of confidentiality, to swear a witness statement saying that s/he has reviewed the written exchange between me and X and that my tweet and this blog post is accurate.