It’s the start of the first phase of a claim brought by 1.6 million individuals who say they were cheated on purchases of cars made by a wide range of manufacturers including Mercedes, Ford, Volkswagen, Jaguar Land Rover and many others.

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They were cheated, they say, because their car included a tool which would detect when it was being tested to see how much Nitrous Oxide (NOx) it emitted. During those tests, the tool changed how the car operated so as to produce less NOx and deliver ‘good’ test results. After the test, the car would revert to its standard set up, producing more NOx but a better driving experience.

The individuals - or their lawyers - will say that by cheating the emissions testing regime manufacturers breached the obligations they owed to purchasers. And also breached obligations to the public at large - legal duties imposed by the EU - which seek to regulate pollutants from vehicles, including NOx emissions, and improve air quality.

The claim is a monster. Phase One, starting on 13 October, is scheduled to last ten weeks. Phase Two, scheduled for next year, will deal with how much money the manufacturers have to pay if they have breached those obligations. The total damages sought are estimated to exceed £6bn. And the legal costs of the exercise - those of the individuals and the manufacturers - are £166m. That may seem like a lot but it is less than half the £420m that the defendants and claimants had sought to recover.

So the numbers are big. But why do I call it “one of the most important trials in UK legal history”?

Research conducted for the environmental campaigners, Client Earth, by the Centre for Research on Energy and Clean Air concluded that the extra pollution enabled by these cheat devices - not all the pollution from the cars just the extra - has killed about 16,000 people in the UK, caused something like 30,000 cases of asthma in children, led to 800,000 days of sick leave and a total economic burden due to deaths and poor health of £96bn. So far.

There has been no other case, none I can think of, in our modern legal history that is about human and economic destruction on this scale.

But here’s the thing. The case seeks money for those who purchased cars. It does nothing for the 16,000 people who have died. It does nothing for the 30,000 children who have developed asthma or those who must carry that £96bn economic burden of death and poor health. It does nothing to protect the rest of us from environmental damage.

In Germany and the United States car executives started to be arrested as early as 2017. A number have been convicted and imprisoned. We’ve known about the use of so-called ‘cheat devices’ by car manufacturers since 2015.

But, remarkably, in the UK, nothing has happened.

Why not? A UK Government spokesperson, speaking to the Guardian, said: “We are now considering what action we could take should manufacturers be found to be breaking the rules.” But, of course, if the case settles, as most commentators expect, this will not happen. Just as nothing happened after an earlier settlement here. This line reads very much like an attempt to justify doing nothing.

Class actions, group litigation, collective redress, call these cases what you like, have value. They are a key means by which large, greedy and dishonest businesses are held to account. But, for lawyers who act on them, for the pools of capital which fund them, and for almost all of those who purchased cars, they are just about money.

They are not about environmental damage - or lives lost or health harmed.

Who protects the rest of us?

A group of Thames Water’s senior creditors, London & Valley Water (“L&VW”), has submitted to Ofwat proposals for them to be relieved from fines for past or future sewage dumping for a period of up to fifteen years and to take a very modest haircut to their loans.

But is the proposal lawful?

Several days ago L&VW, a group of Thames Water’s creditors who control the water and sewage business, shared with Ofwat proposals for it to be restructured.

The proposals include a “Performance Improvement and Turnaround Plan (the PITP)”, an “improvement accountability framework” which sets out the standards L&VW is content to be held to , a “Turnaround Oversight Regime”, and an “independent Thames Water Community Benefit Trust”. Substantially no detail of these regimes has been made public - but we do know that the Community Benefit Trust will be funded with the vanishingly small sum of £25m in cash and £5m of shares.

Critically, the creditors who control the restructuring - the so-called Class A shareholders - will receive a modest 25% haircut (from £16bn to £12bn) and will receive in return 10% of the equity in the new company conducting Thames’ business.

As the Guardian has pointed out, L&VW has graciously agreed to pay fines that are already outstanding for sewage dumping and other regulatory breaches. However, so far as past wrongs where a fine has yet to be levied and future wrongs are concerned it wants to be let off the hook.

More specifically, L&VW’s proposal is that “taking or continuing regulatory enforcement action for the duration of the turnaround will be assessed based on delivery of the PITP.” That seems to be a polite way of saying that they are proposing to comply with targets they set themselves rather than those set under the licences or by the regulator. It goes on to confess that a “full return to legal, regulatory and environmental compliance (based on existing requirements) under the London & Valley Water Plan is expected to occur in AMP 10”.

AMP stands for asset management period and is a five year regulatory cycle. AMP 8 began on 1 April 2025 and so AMP 10 will not commence until 1 April 2035. Moreover, all that L&VW can promise is that full compliance is expected (ie not will) occur and it is expected to occur in (ie not by) the five year period starting on 1 April 2035.

Unlike fines for breaches, dividends might recommence as early as 31 March 2030 if Thames Water is then sold.

L&VW claims that “the Plan can be implemented without the need for any legislation”. The source of L&VW’s anxiety to avoid legislation is, of course, that MPs would find it very difficult to approve a plan that protected those in de facto control of Thames Water by relieving it from the consequences of sewage dumping for up to fifteen years. And if the plan does require legislation, that legislation would probably not pass through Parliament.

But it is also far from clear L&VW is right that the Plan can be implemented without the need for legislation.

Section 24 of the Water Industry Act 1991 contains a “special administration regime” if Thames Water is in serious breach of its principal duties as a water company or a sewage company or is unable to pay its debts. Either Ofwat, with the consent of the Secretary of State, or the Secretary of State directly, can apply for a SAR. The effect of a SAR is set out in section 23 and it is, relevantly, to take steps to ensure that the company’s functions are properly carried out and the company is not insolvent. It is clear a SAR could impose a much deeper haircut on the lenders that L&VW represents - the regime enables Thames Water’s business could be sold unencumbered by its debts and at a price negotiated by the administrators. Only the sale price would then be available to meet the claims of its lenders.

Against this background, it is hard to see how Ofwat might lawfully choose to approve a proposal from L&VW which, rather than compelling Thames Water to meet its duties as a water company or a sewage company, relieved it in part or in whole of the consequences of breaching those duties in order to improve the position of its creditors.

Moreover, by section 18, Ofwat and the Secretary of State have positive obligations, where they are satisfied a water company is breaching its licence or statutory duties, to take steps to secure compliance with those duties. It is right to say that those obligations are complex and are also qualified. However, they are also in primary legislation made by Parliament and it is quite another thing to say, as in effect L&VW does, that Ofwat has power to set them aside for a period of 15 years if they improve the financial position of Thames Water’s creditors.

Ofwat has until 25 October 2025 to respond to the proposals. In the event it decides to accept them, a judicial review challenge to that decision may well follow, and Good Law Project will certainly consult with a specialist King’s Counsel on whether to bring one.

But how does this happen? This post addresses the Labour Party Rules for choosing leaders - and how Burnham navigates them.

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Image: Anthony Devlin for Getty Images

The Labour rules for leadership elections

The current machinery for leadership elections is set out in the Labour Party Rulebook of 2025. There are different rules governing leadership elections depending on whether there is a vacancy or not. I’ll assume that Keir Starmer does not resign so there is no vacancy.

The key provision is in Chapter 4 Clause II.2.B.ii which states: “Where there is no vacancy, nominations may be sought by potential challengers. In this case any nomination must be supported by 20 per cent of the Commons members of the PLP.” Currently there are 399 Labour MPs so 80 would need to nominate a candidate to spark a leadership election. There is no need to obtain the support of constituency Labour Parties or affiliates such as unions.

(The same provision settles an argument outstanding from the Corbyn years by providing that a sitting leader is automatically on the ballot: Starmer would not need to seek nominations to stand in any leadership election.)

To accept the nomination a challenger must notify the General Secretary in writing.

Chapter 4 Clause II.2.D.i provides that an election is triggered by the nomination of 20% of MPs. And there is no explicit provision for other challengers to enter an election sparked by - eg - a stalking horse candidate. But the National Executive Committee (NEC) is required to ensure that elections are “conducted in a fair, open and transparent manner” and it will want to avoid multiple leadership elections so it is a racing certainty that the timetable for the election - which must be set by the NEC and approved by an independent scrutineer - would be set to enable other MPs to seek the requisite number of nominations.

The electorate is made up of Party members and “affiliated supporters”, each of whom must have a minimum of six months continuous membership to vote. The Rulebook does not define “affiliated supporters” - and uses various overlapping terminology to describe what appears to be the same people (“affiliates” and “affiliated members”) but the rules provide that “precise eligibility criteria shall be defined by the NEC”: Chapter 4 Clause II.2.C.vii. In 2020, there were 12 affiliated unions and 20 affiliated societies and one might expect affiliated supporters to be those who have membership of those.

Voting is by preferential ballot: “the votes shall be totalled and the candidate receiving more than half of the votes so apportioned shall be declared elected. If no candidate reaches this total on the count of first preference votes, a redistribution of votes shall take place according to preferences indicated on the ballot paper”: Chapter 4 Clause II.2.C.ix. And the result is declared at a Party Conference.

What about Andy Burnham?

In principle Andy Burnham appears to be the leading candidate to replace Keir Starmer. But the Labour Rule book provides that “All nominees must be Commons members of the PLP” (Chapter 4, Clause 2.II.B.iii) and Mr Burnham is not. His allies anticipate that he would satisfy the requirement via a friendly MP resigning their seat, which Mr Burnham would step into.

Even if such an MP can be identified - and two possible MPs, Andrew Gwynne and Graham Stringer, have already ruled themselves out - there are, apparently, formidable further difficulties.

The procedure for an MP voluntarily to resign their seat is arcane and requires that they be appointed to an “office of the crown”; this disqualifies them from holding a seat in the Commons and so triggers their departure. The Chief Whip of the resigning MPs’ party then asks the Speaker to hold a by-election.

Any seat that would be vacated to make way for Andy Burnham would by definition be a Labour seat and so the Chief Whip would be an appointee of the Prime Minister, Keir Starmer. This matters because the Chief Whip can choose when to ask the Speaker to hold the by-election. As the Parliament website puts it: “A new Writ [for a by-election] is usually issued within three months of the vacancy. There have been a few times when seats remained vacant longer than six months.” Indeed, there appears to be no legal obligation to hold a by-election at all. And the polling day follows a further 21 - 27 working days after the writ is issued.

So, from the date a friendly MP resigned, Andy Burnham would qualify to be nominated as leader after a couple of months at theoretical best - Labour will want to select a candidate before the writ for a by-election - but might take as long as four months at reasonable worst. So Burnham would have to signal - several months before even qualifying to do so - that he planning to challenge Starmer for the leadership. And it would be against that background that he would have to be selected by a Labour Constituency Party and then win a by election. He would need to hold himself out simultaneously as loyal to Labour (for the CLP), keen to commit regicide (to nominating MPs), and promising a bright future for the Government (to the constituency electorate).

James Maxton wrote, of politicians, that ‘if you can’t ride two horses at once you shouldn’t be at the circus’ but in this scenario Burnham would be riding three.

(It’s also worth pointing out that the NEC has power - see Chapter 5, Clause IV.8.A - to block a candidate selected by a constituency party from standing as an MP. But it is hard to imagine the NEC blocking a candidate of Burnham’s stature: to do so would cause enormous political harm to the Party and would certainly face legal challenge.)

Still, there is a plausible path through. The NEC has a broad power in Chapter 4 Clause 2.1.A to vary the rules - ironically, it used a similar discretion to allow Keir Starmer to stand for election for Labour in 2015 despite him not satisfying the requirement of having been a member of the Labour Party for a year - to allow someone who is not, or not presently, an MP to stand for leader.

Superficially, you would think an NEC under Starmer would not exercise that discretion to aid his deposing. However, if the alternative was to rule out, on a technicality, the most plausible candidate, one who would qualify to stand shortly, possibly even during the timetable of the leadership election (Labour’s timetable to elect Starmer ran for three months), with a possible alternative being successive leadership elections when Burnham did qualify to stand, weakening Labour internally and externally, you might expect it to do the sensible thing and exercise its discretion to allow his candidacy.

The most likely way through seems to be this.

A candidate - perhaps a stalking horse for Andy Burnham - succeeds in gathering the nominations of 80 MPs to stand against Starmer. And, prompted by that leadership election, a sitting MP resigns his seat to clear the way for Burnham to stand as well. The NEC, aware of its power to block Burnham, but cognisant of the practical harm of doing so, allows him to stand. The rest is then up to the Labour electorate - which YouGov polling suggests favours Burnham

“I - and here one interposes one’s own name - do swear by Almighty God that I will well and truly serve our Sovereign King Charles the Third in the office of - and here you insert the name of the judicial office to which you have been elevated - and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will.”

I will do right to all manner of people after the laws and usages of this realm without fear or favour, affection or ill will. 

That noble formula expresses the thing we crave in the law - a Wisdom of Solomon resolution of the complexities of the human condition. An unravelling of the contradictions and multitudes contained.

Alright. Granted, I am laying it on a bit thick. 

There is no need to set the law so high on such a flimsy pedestal in order to interrogate whether it delivers on the promises it makes. Enough to ask whether it meets its basic promise of fairness without fear or favour. And, as the title of this lecture ‘Whose Side is the Law On?’ makes clear, I think it falls short. 

What I want to do this afternoon is four things. 

First, make some points about how the law is constructed to align it with power.

Second, observe some features of the landscape in the United Kingdom that make that situation worse. 

Third, offer some evidence that the law is failing to meet its promise to “do right to all manner of people without fear or favour.” 

And, fourth, suggest some tentative improvements.

First - the law is constructed to align it with power.

The main sources of the law are statute law, Parliament-made law, if you like, and judge-made law.

For a lawyer, Statute law is how a party holding a majority in the House of Commons leaves its lasting stamp on the country. It is an articulation of the policy preferences and priorities of the Government holding power. 

It is the most conspicuous way that a Government enlists the power of the State to express its preferences as to how that society should look. Its will is written into the law books and can then be enforced by the State’s power to confiscate property and coerce through imprisonment. 

It is also backward looking - the laws of the land are not cancelled on a change of Government. What this means is that the law is inherently conservative - it is the accumulated policy preferences of those who now or have previously held power.  

I’m not saying this is right or it is wrong. It just is - unless you are or you have been in Government you have had no ability to make this form of law. And the lawbooks reflects that.

Common law - our other source of law - is made by judges. And it reflects how they understand the world. 

Judges are usually clever men - fewer than a third of senior judges are clever women - but their most singular quality is that they are privately educated. Elitist Britain, a 2019 study by the Sutton Trust and Social Mobility Commission, showed that although only 7% of the population went to private schools, 65% of all senior judges do. And 71% went to Oxbridge compared with only 1% of the population. 

No profession in Britain is less socially diverse.

Fairness looks different to those who have grown up in communities where the pathways to highly paid professional positions are clearly mapped and well-trodden to how it looks for those whose peers could not see a way out and amongst whom poverty, unemployment and criminality are a commonplace. 

This is a truism - but we still need to wrestle with its consequences.

I began this lecture with the judicial oath.

Nothing in that oath transports judges to a higher spiritual plane, to a more enlightened state of being. 

There are lots of day to day examples of how these biases play out but I want to focus on a more fundamental one: the idea of Parliamentary sovereignty. 

This is the idea that Parliament is supreme and can make whatever laws it likes. It is sometimes described as the cornerstone of our constitution - although it might be better to describe it as the only (largely) fixed rule of our un-written constitution. And it raises an obvious question about how fundamental rights might be protected. 

Tom Bingham to his friends - Lord Bingham to you - was described in one obituary as “the greatest judge of our time – arguably the most significant judicial figure among the long line of notables in the history of the Anglo-Saxon legal systems.”

His legacy for the general reader is a book called ‘The Rule of Law’. Here’s what he had to say in that book about Parliamentary Sovereignty: 

“Critics of parliamentary sovereignty have no difficulty conceiving of flagrantly unjust and objectionable statutes: to deprive Jews of their nationality, to prohibit Christians from marrying non-Christians, to dissolve marriages between blacks and whites, to confiscate the property of red-haired women, to require all blue-eye babies to be killed, to deprive large sections of the population of the right to vote, to authorise officials to inflict punishment for whatever reason they might choose.

And then he adds a coda:

“No one thinks it at all likely that Parliament would enact legislation of this character, or that the public would accept it if it did…”

I would say that the coda - that Parliament can be relied upon not to do awful things - speaks to a particular understanding of how (or more particularly against whom) Parliament has used its power through the ages. 

The description it gives of what Parliament can be relied on not to do is hard to reconcile with your reality if your skin is Black or Brown. It is hard to reconcile with Parliamentary approval of, for example, the activities of the East India Company - or its treatment of enslaved peoples.

And this is not just a historical problem. The expanded powers of the British Nationality Act give the Government power to strip British citizenship from a Jew even if, in the case of a Jew who acquired their citizenship through naturalisation, the effect would be to leave them stateless. More recently, it has said that people of colour - let us not pretend that the Rwanda Act is about deporting White people - can be forcibly removed to a country we know not to be safe.

If you are Black or Brown your experience suggests that you should be less complacent about Parliamentary sovereignty than was Lord Bingham. 

I don’t make those points to rain on his parade. He was, by all accounts, a decent man and the views he expressed are entirely constitutionally orthodox. All of us are constructed by our personal history. I could have picked any one of numerous other constitutional grandees. 

But Parliamentary sovereignty is a notion invented by judges who are even now - and it was more so in the past - grand, privately educated, wealthy, White English men and it reflects their perception of who England is in the world, what it has done and to whom, and what it is likely to do. 

And what it is likely to do to people like them is very different from what it is like to do to a Brown woman who has been trafficked to the United Kingdom for the purposes of sexual exploitation. She, the House of Commons recently decided, can be deported to a country that is not safe for her.

The final feature of the law I want to point to is its expense. It has become routine for lawyers to cost thousands of pounds. Not thousands a week - or even thousands a day - but thousands an hour. It is obvious but too rarely said that a tool that is too expensive for normal people to use becomes a tool that only the wealthy can use. It is a tool they use to embed their interests, the interests of people with money.

The law is a very different thing for those with the wealth or social capital to engage lawyers - to those who can afford us we are a powerful militia - to what it is for the overwhelming majority who do not. 

The traditional response to this is to make the point that there are lots of lawyers who will give their time for free to ensure access to justice. And there are. The point is true so far as it goes - but it does not go very far. 

The way our system allocates costs means that if you litigate and lose you will generally, not always but generally, pay the winners’ costs. So even if you have lawyers acting for free you often cannot fight because if you lose you face enormous financial penalty or bankruptcy.

This critical feature of the law - a profound shortcoming in a thing whose main purpose is to be a safeguard - is crafted by a civil procedure rules committee who we believe to be entirely white and overwhelmingly Oxbridge educated. 

I would point to these three features of the law that align it with power rather than fairness. The nature of statute law, the identity of our judges, and the nature of our costs regime.

The law is the victory dance of power.

Second - some features of the legal and social landscape in the United Kingdom that make this situation worse

The first is the limitless power of Parliament over judges. 

I have touched upon this already - lawyers call it the sovereignty of Parliament and we have seen it mostly recently in the constitutional tussle over Rwanda. The Supreme Court looked at the evidence and said “Rwanda is not safe” and Parliament responded with a statutory provision that said, “We don’t care, you have to treat it as safe when exercising your powers as judges.”

You might think this is inevitable. In a country that is a democracy - who else can wield power but those elected by the people? (Some of the people, at any rate: Tony Blair won a significant workable majority in 2005 with only 35% of the popular vote.)

But it is not inevitable.

Other democracies find ways to distribute democratic power over temporally different electorates. They elect representatives in tranches rather than all at once. They have multiple elected houses, each of which can clog the other and which are also elected at different times. They have an elected Head of State who has his or her own democratic legitimacy. And, most of all, they have a higher law which safeguards fundamental rights and which it takes a super-majority of the electorate or its representatives to change.

What we have is what Lord Hailsham described as an “elective dictatorship” - the only real power belongs to the House of Commons. The Lords - as we have seen from the Rwanda Act - gives way. 

And this feature - which is present in England and Wales although less clearly in Scotland which has its own legal system - is judge-made. 

We have no written constitution, no higher rule to define or restrain the power wielded by a Government. So although we talk about the separation of the powers - constructing the Executive and Parliament and Judiciary as independent and counterbalancing sources of power - our reality is very different. 

Parliament can do what it wants.

In the early years of its life, Good Law Project brought a number of cases. We raised money from tens of thousands of people to litigate cases in our name. We were, if you like, a legal trade union. We enabled normal people who could not afford to wield the law alone to wield it together. 

Good Law Project versus the Government was the new In re a Company - an excellent if ‘inside baseball’ joke made by one of the senior judges hearing cases against the Government. But then everything changed in about the summer of 2022 - since which time we have only been allowed to litigate in our own name once, in an environmental case where special rules apply.

What happened was a series of attacks on us in the press culminating with a very explicit threat made to the judiciary by Rishi Sunak:

“I have the greatest respect for our judiciary and the rule of law in this country” wrote Sunak in a press release in August 2022. He then went on to threaten new legislation to force judges to do his bidding “which he would activate in the event of judicial recidivism”: an extraordinary word to use. And he said he would not need the consent of Parliament to do it.

For good measure, that press release attacked me, by name, ten times. And since then, save for only one case in a special regime, we have not been allowed to litigate. Would this have happened if the independence of the judiciary were protected by a higher law - so that Sunak could not issue that threat and expect to be taken seriously?

The reality is that, because the independence of the judiciary is not protected by a higher law, there is no need for Sunak to legislate to stop judges interfering. When the Israeli Government threatened the independence of its judges hundreds of thousands took to the streets. When the Hungarian Government threatened the independence of its judiciary the EU threatened it with sanctions. But the absence of a higher law in the United Kingdom enables the Government to interfere with the judiciary in private, behind closed doors, and without sanction. 

It would be an oversimplification to say that judges can be obliged to do what Government wants. But they can certainly be lent on. You will struggle to find a single senior public lawyer who (speaking privately) would take serious issue with the proposition that Government has successfully tilted the playing field against those who want to use the law.

I was told a year or so ago of a prominent Court of Appeal judge - I know his name - who had been saying that claimants were going to lose a lot of cases because judges wanted to conserve their power in case of another “prorogation-type” event, another direct attack on democracy. And you can see this very clearly in the figures - there has been a broad spectrum collapse in success rates in cases against the Government. 

Has this Government - famously characterised as ‘We’re fucking breaking international law like it’s one of our five a day’ - suddenly become hugely law abiding? Or have judges moved the goalposts? 

This - the absence of proper legal protection for judges from bullying Ministers - is a subtle feature of the constitutional landscape that aligns the law with Government power.

I also want, under this section, to draw attention to one further feature of our legal landscape, this one in plain sight, that aligns the law with Government power.

Different judges have different approaches to the relationship between themselves and the Government. 

There is nothing sinister in the fact of these differences - they might reflect different philosophies (which are certainly to be found in academia) and they might also reflect different approaches. So some senior Administrative Court judges worked almost exclusively for the Government before becoming judges and others worked almost exclusively against it. It would be surprising if their personal history didn’t reflect how they thought about their former clients.

One can’t sensibly deny that they exist - these differences. I was a King’s Counsel - notionally I still am. And I am now through Good Law Project one of the biggest buyers of the services of public law lawyers. So I know very well, having been on both sides of the table (payee and payer?), that lawyers are always interested in who their judges are. And they always tell their clients and sometimes (not always) they have strong views. Sometimes as a lawyer you believe you know that a difficult case can become impossible - or a simple case easier - because of the particular judge you get.

What is troubling is the belief that judicial review cases which carry enhanced political risk for the Government are placed before judges whose way of looking at the world is politically convenient. In other words that we decide politically sensitive cases by handpicking the judge.

There is a widespread perception that this happens. In one very high profile case of ours - the Defendant was Michael Gove and Dominic Cummings was implicated - we won at first instance but were overturned in the Court of Appeal. This was a profound surprise to everybody - certainly to our lawyers and (it also seemed because they didn’t appeal until after the deadline) to Government lawyers. After the result came out, I was contacted by a High Court judge who said to me (I have their email) “You managed to pick 3 Tories in the CA (or rather Burnett did).”

Ian Burnett was then the Lord Chief Justice. 

That role is where the political rubber hits the legal road. 

The Lord Chief Justice is appointed by the Lord Chancellor - who is of course a Minister, indeed a senior Cabinet Minister. Under the Constitutional Reform Act 2005 the Lord Chancellor can, but does not need to, consult anyone else before making the appointment. So the Lord Chancellor can, if so minded, make a political appointment when choosing a Lord Chief Justice.

And under that Act the Lord Chief Justice “is responsible… for the maintenance of appropriate arrangements for the deployment of the judiciary of England and Wales and the allocation of work within courts.” He or she can decide who hears cases.

What I can say is that Government leaning judges are believed within the profession to be allocated to politically sensitive cases. And I can say that it is clearly constitutionally possible for that to happen. And I can also say that Ian Burnett was a member of the Carlton Club which is often described as the home of the Conservative Party.

I should add, I can’t say that what the law clearly permits and insiders believe does happen actually does happen. I do not know that the High Court judge who sent me that email was right - and they have since claimed they were just joking. And I don’t think that the data points about Ian Burnett are anything like ‘conclusive’ evidence that he did what is said; I know that privately judges, even judges who are sympathetic to the work that we do, speak highly of him. 

But what I can say is that the perception of politically motivated listing is widely held. And the Constitutional Reform Act, in plain sight, does give to the holder of the most political of judicial appointments the power to decide who should hear cases.

Third - offer some evidence that the law is failing to meet its promise of fairness

Much of what I have said before is heretical for a lawyer to say. Or, more accurately, it is heretical for a lawyer to say it publicly because we certainly say it to one another .

When I have talked about perceptions of individual judges publicly I have been criticised by my peers - even by those I think of as enlightened. Their point is that it is wrong to say this stuff publicly because to do so is to undermine public confidence in the administration of justice. 

This notion - that one must not undermine public confidence in the administration of justice - is an idea heavily embedded in my regulatory super-structure. It is, for example, an explicitly stated outcome sought by my professional conduct rules. And we all understand that it is important - the rule of law functions best when the limits of its authority are not tested, when the public has confidence in it. It’s a bit like being a parent.

But I do think a blind prioritisation of promoting confidence in the rule of law is dangerous and misguided. And that the omerta on examining whether the law delivers on its promise of doing right to all manner of people without fear or favour might ensure that it doesn’t. It might mean it serves privilege rather than fairness.

If we see or experience racism in the police force our confidence in the police declines. If our concern is for public confidence in the law we should ask people who might have experiences of the law different from our own whether they have confidence in it. We will build more confidence in the judiciary by interrogating how it works and what it does rather than by drawing a veil.

So Good Law Project asked people from all ‘minoritised groups protected by the Equality Act what they thought. 

We commissioned polling from YouGov which showed that, for example, people of colour do have lower levels of trust in judges. Asked “How much, if at all, do you trust judges?” 65% of the general population (including people of colour) said: “a lot” or “a fair amount”. That figure fell to 61% for “Black, Asian and Minority Ethnic” adults and to only 47% or 50% for Pakistani and Bangladeshi people respectively (albeit from a small cohort). The only group that had less confidence in the judiciary was trans people at 46% (and 40% of all trans people said their confidence in the judiciary had fallen).

What was true of people of colour was also universally true.

The data showed, without exception, that the closer you looked like the archetypal judge the greater the degree of confidence you had in judges and the rule of law. 

Those from higher social classes had more confidence than lower, older people had more confidence than younger, white people had more confidence than people of colour, straight people had more confidence than gay, able bodied people had more confidence than disabled, and cis people had more confidence than trans.

I may have missed it but I’m not aware of previous detailed polling on trust in the judiciary across minoritised groups. And that is a striking omission given the importance the legal profession attaches - or says it attaches - to upholding public confidence in the law. But is public confidence really the concern? 

If it was, wouldn’t you want to know whether people actually had confidence in the judicial system - and if some did and some didn’t why?

Of course, many of these relative levels of confidence exist in relation to other institutions too. My point is not that these differing levels of confidence are unique to the law. My point is that lawyer’s attitudes to them - that they shall not be acknowledged or spoken of - is unique.

What is really being contended for by those who say, ‘you must not criticise judges, you must not undermine public confidence in them’? 

If the concern really was to protect confidence in judges would they not be asking why it is that society’s 'winners' have confidence? Perhaps the true concern revealed by this selective silence - and silencing - is that things are working well for people who look like judges. Perhaps that is the real concern - to maintain the status quo? For it is certainly the status quo that is served by the omerta.

Just by the by, another important question is, why is public confidence in the rule of law given an elevated importance? For sure it has value but is it more important than the law working properly and fairly? And if a thing is broken, or damaged, is it right to encourage people to have confidence in it?

And, how is it that you really ensure confidence in judges and the law? Do you do it by protecting them from criticism? Or do you do it through responsible interrogation? Most lawyers, if asked to comment on any other feature of society, would say that the best way to keep things honest, and functioning properly, is through scrutiny, to interrogate whether things are actually working. 

If that is right of everything else, why is it wrong of justice and judges?

I want briefly to share a postscript to that YouGov poll. 

The group that had the lowest confidence in the judiciary was trans people: only 46% percent had confidence in the judiciary. And a staggering 40% of trans people said their confidence levels had fallen.

Causation isn’t correlation. But it is striking that when judges decide issues which have a profound effect on the lives of trans people, trans people themselvesoften aren’t in the room. Indeed, sometimes it has been bolted shut to them. 

One of the guiding principles of the conduct of justice is that you should hear from those who are affected. But in the signal case of our times for trans people concerned - the Bell case - the Divisional Court refused permission for Mermaids, a charity that represents young transgender people, to intervene. It refused permission for Stonewall, undoubtedly the country’s leading LGBT+ charity, to intervene. And, having initially allowed an intervention from a trans child, it then changed its mind and rejected it. But it did allow an intervention from an anti-trans pressure group, Transgender Trend, which was not affected by the case and which had no recognised professional expertise in treatment protocols for trans children.

The decision was an appalling one - as was the conduct of the case by the judges in question. Speaking as a lawyer, and I am not commenting on its outcome, I cannot think of a worse decision in recent times. And for the record, I was saying this very publicly before it was overturned by the Court of Appeal. 

We have come to think of minoritised groups as unable to participate in decisions affecting their lives, often because they are ‘self-interested’. I wonder where that leads - what does it mean for the body autonomy of women? But if groups are excluded from the room when decisions are made about their lives is it any surprise that they have little trust or confidence in the process?

That is the law failing to meet its promise of fairness. That is the law deserving the lack of confidence it has generated. 

And it is right, rather than wrong, to say so.

Fourth - I want to finish with some ideas about how to make things better

Despite all I have just said, I don’t want to be too apocalyptic about any of this. 

My uninformed guess is that, relative to our peers, our legal system is second or third quartile in terms of how it operates. Certainly not awful - but not nearly as good as we kid ourselves. But there is ample room - and possibility - for it to improve.

Three specific suggestions.

First, the rule that the loser pays the winners costs is much too rigid. 

The rule exists for good reason. Without it litigation can be used to deprive people of their legal rights. If you are forced to sue to recover money you are owed and you cannot reclaim the costs of suing then the law does not deliver justice. If you are forced to defend a hopeless lawsuit and you cannot recover the costs of your defence your pursuer can use litigation to harm you even if the law is not on their side.

But if the rule is applied too rigidly, it can mean that justice is avoided and not done. If I cannot afford the risk of defending myself against a rapist who threatens to sue me unless I apologise for naming him that does not serve justice. If I cannot afford to assert my legal rights because of the risks of losing them, they are not, except in a theoretical sense, my rights at all.

Resolving these tensions is not a matter for today. What is a matter for today is recognising that there are tensions to resolve.

Second, we need to take an interest in the outcomes that particular judges deliver.

The power exercised by the judiciary is such that - even if it was your heartfelt belief that taken as a whole they are uniquely blessed with kindliness, wisdom and equanimity - even then you might still think it wise systematically to monitor their actions just, you know… just to be sure.

The law requires large employers to produce and then publish their gender pay gap. It does this, in part, to pose questions to employers about why their figures look like they do. Perhaps there are good and satisfactory answers - but without the production of the data they might never think to ask. And the publication of the data serves another purpose - it enables employees to interrogate the system,

There is no reason why we should not produce equivalent data for judges. Sometimes the data will only serve the purposes of asking questions about outlier judges. If the data shows that a particular judge is more likely to arrive at a particular outcome than their judicial colleagues, shouldn’t they know? Might it help them gain awareness of the possibility of biases in their conduct? Might that data form part of the interrogation of whether they should be promoted up the judicial ladder?

Kick their tyres and well-worn aphorisms about the law often reveal themselves to be expressions of what Gramsci would have called the cultural hegemony. They are part of the way in which those with power hold it to themselves and to their benefit. They amply justify the political theorist and philosopher Judith Shklar’s acid observation that the ‘rule of law’ has:

“become just another one of those self-congratulatory rhetorical devices that grace the public utterances of Anglo-American politicians. No intellectual effort need therefore be wasted on this bit of ruling-class chatter.”

Those, and I number myself amongst them, who would like to fend off that powerful criticism do so best by muscular engagement with what the law and judges do, and how and why, rather than an intellectually demeaning mixture of Victorian paternalism and thoughtless indignation. If the conduct of the law is to remain more than empty performance of our own sense of virtue these questions cannot be dodged.

My final point is this. 

We have our share of virtues, us barristers, but qualifying as a barrister is expensive and so we tend towards the privileged and we tend towards the conservative. Judges are overwhelmingly drawn from the bar and if you want to become a judge you know you have to keep your head down. So they become the most conservative members of a conservative profession. Not, taken as a class, a group well equipped to interrogate its privilege.

And we are not hugely diverse in other ways. In England and Wales there are 1,417 salaried judges - those who have decided to become a judge permanently. Of those 1,417, the number who are Black or Black British is… eleven. This is quite a big jump from when I last checked, several years ago, when the equivalent number was four. But it remains very poor. And after the departure of Victoria McCloud I don’t think there is a single salaried trans judge in the UK, certainly not one who is out.

If we want people to have confidence in the law - and we say we do - and if we want the law to deserve the confidence we invite people to repose in it, I think we need to return to an idea Sadiq Khan pushed when he was Shadow Justice Minister, of quotas.

So, to conclude, we need to revisit our costs rules to ensure that they serve justice not money. We need to monitor what judges do - they do not live on some higher moral plane - they are prone to the same biases as everyone else. And we need to care who judges are - not just to rend our cheeks and wail about the deplorable state of the judiciary - we need concrete steps to fix the problem.

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My good friends at Plaid Cymru have sent me some briefing notes about the important legal issues raised by the Senedd and Elections (Wales) Bill. And I am grateful to them. And they suggest I speak to you of those issues.

But I although I am a lawyer, you have invited me today not for that reason but because I am a New Zealander who has spoken of how policy changes in NZ to promote the use of Te Reo Maori, the Maori language, sparked a resurgence in Maori culture in New Zealand.

New Zealanders can see how the Maori people carry their cultural inheritance with pride. The world can see how New Zealanders carry Maori culture at the forefront of how we, as New Zealanders, project ourselves

I shall not linger too long on the rugby. Perhaps wisely. But you see this clearly when you compare the haka of the 1970s with that of today. Look at the cultural pride the nation shares. All of NZ benefits. And I want, and everyone who loves Wales should want, all of Wales to benefit from resurgent Diwylliant Cymru. [Welsh culture]

What I say next I say with genuine humility - because I am not Welsh. But I cannot understand the objection to calling the Senedd the Senedd. I gather the argument is that some people living in Wales will not understand what the word means. If that is so that is - and being an outsider obliges you to speak with humility but also allows you to speak with clarity - that is a terrible state of affairs: laith Cymru yw diwylliant y genedl. [The language of Wales is the culture of the nation.] If you do not know what is the Senedd then for Godssake learn! And calling it the Senedd is an opportunity to teach.

It is often said that if you are of privilege equality feels like oppression. It is less often said that if you are oppressed equality can come to feel like privilege. Having a title in English for those who do not care enough to learn is not good enough. If you rightly love your culture you should not bear it.

A culture resides in its language or it dies in a museum.

Can I finish with some words from John Robert Jones. And I ask for your forgiveness for not speaking them to you in Welsh:

"Leaving your country is a common and sometimes sad experience. But I know of something which is much more heart rending, for you could always return to your native land. And that is, not that you are leaving your country, but that your country is leaving you, being finally drawn away into the hands of another people, another culture."

Ffrindiau, gwn na fyddwch byth yn caniatáu i hyn ddigwydd. [My friends, I know you will never allow this to happen].

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Note: A rather lengthy version of such a Bill, drafted by Helen Mountfield QC, can be seen here. It would not be difficult to draft a shorter version occupying only a single page.

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The circumstantial evidence is: A story, reported in today's Mail on Sunday, that a further suspension of Parliament is planned. Reports that the Prime Minister is meeting members of the ERG privately. Widely reported briefings that the Prime Minister plans to put a re-heated version of Theresa May's Withdrawal Agreement before Parliament.

Labour’s Inclusive Ownership Funds (IOF) policy requires a large company – defined as one with 250 employees or more – to transfer 1% of its shares each year into a fund on trust for its workforce, up to a maximum of 10%. The transfers will be effected either by a gradual dilution of the original shareholders – via annual scrip dividends – or by purchasing shares on the open market for the benefit of the IOF.

The case for IOFs is a holistic one. In a closely held briefing document – even a promise to write a supportive piece did not precipitate the delivery of a copy from the Shadow Treasury Team but I have my sources – Labour points to the declining labour share of national income, the concentration in ever fewer hands of financial assets, and the scope for decision making with a longer timescale that can follow from enhanced employee share ownership.

But what about the money? The aggregate value that would come to be held in IOFs might not much matter. It’s a figure that follows from the scope of the policy – something Labour’s rather hazy on. This might not surprise you because questions about geographical reach get very tricky very quickly but on any view it’s very significant.

A better way of looking at the policy might be to analyse its consequences for affected investors. The effect of diluting shareholders via scrip dividends would be a gradual reduction in their dividends of 10% over the course of a decade. Not ideal, perhaps, but not catastrophic either. And this diminution might be more than compensated – Labour gives some evidence for this effect – by the productivity gains resulting from a share-owning workforce.

A sharper criticism of the proposals – the foundation for the vigorous language of “expropriation” and “confiscation” – is the share of profits going to the Government. Under Labour’s plans each worker would receive an annual payment from her IOF capped at £500 with dividends over that cap going to the Government.  Clifford Chance, authors of the report on which the FT story is based, say this means £9.4bn – or 88% of total projected annual dividends paid to IOFs – would find their way to the State. Labour, on the other hand, gives an equivalent figure of £1.1bn.

The resolution of this divergence depends, again, on geographical scope. Clifford Chance says that global firms will pay dividends on global profits with the small number of UK employees quickly capping out at £500 and vast surpluses to the Government. There are some signs Labour might confine the policy to UK profits but this is still a forceful criticism.

Policy making in the tax sphere is notoriously difficult for any Opposition; it requires complex modelling of data and access to closely held and expensive tax expertise. And the problem is especially stark for the present Labour Party which has not sought or maintained good relations with the tax drones inclined to help on this stuff. What Labour has done is recognise its difficulty with a promise to consult to ensure that the implementing legislation is “robust and widely supported”.

What we’re left with is a policy of uncertain application, which will be hugely difficult to implement, and will have a number of distortive effects (go long outsourcers who will help keep your headcount below the magic number). But it will also deliver an important advance in how our economy is structured, a form of widely held employee share ownership.

Ultimately the question we, as voters face in a General Election might just be whether we’re ready to commit to an inclusive capitalism – or are just embarked on what Larry Summers described as a “rhetorical embrace”.

Note: I was an adviser on tax policy to Labour under Ed Miliband - and have (although not recently or in connection with this policy) advised the present Shadow Treasury Team.

One of our lines of argument is that 'No Deal' is unlawful as a matter of domestic law and, in extremis, a court would order Boris Johnson to revoke Article 50.

That is a rather striking contention and so I thought it might be helpful to set out, in somewhat greater detail, how the argument runs.

1. As a matter of UK constitutional law, Miller in the UKSC (correctly) determined that

(i) EU law could be regarded as a direct source of individuals’ rights

(ii) the Crown has no inherent power to diminish or attentuate or remove the substantive rights of individuals

(iii) if individuals' EU law derived rights are to be removed or altered or diminished by Crown action (or omission) this can only lawfully and constitutionally be done if the Crown was expressly authorised/empowered by Parliament by enacting a statute to this effect.

2. The majority in Miller proceeded on the assumption (that being the joint position of the parties) that as a matter of EU law the act of notification by a Member State under Article 50(2) TEU of its intention to withdraw was an irrevocable act and therefore could be treated for the purposes of UK law as the commencement of a process which would inevitably lead to the loss of individuals’ EU law rights. It was on that basis that the majority concluded that a statute was necessary as a matter of UK law to authorise notification as a matter of EU law. As it turns our, they were wrong. Lord Carnwath in the UKSC had the better analysis on this point, namely, that there was nothing inevitable about the diminution of rights following from notification since there would be up to 2 years of negotiations before one actually knew what the specific consequences of withdrawal would be for individuals' EU law rights.

3. Wightman in the CJEU confirmed Lord Carnwath's analysis in Miller to be the more soundly based in its holding that there was nothing irrevocable or inevitable in the effect on individuals' rights about the Article 50 notification, which could be unilaterally withdrawn at any time while the UK remained a member State.

4. Applying the CJEU Wightman analysis to the proper interpretation of the EU (Notification of Withdrawal) Act 2017 that Act can now be seen as doing nothing more than authorising the Crown to open negotiations for withdrawal. What it did not authorise was the Crown to diminish or take away individuals EU law rights. No blank cheque - indeed no cheque of any sort - was given by Parliament to the Government.

5. The Miller majority analysis remains good however in confirming that as a matter of UK constitutional law the Crown has no power - whether by its action or inaction - to deprive individuals of their EU law derived rights, other than with express statutory authorisation to do so.

6. If the UK were to leave the EU without any withdrawal agreement having been concluded this would involve a massive alteration in the EU law derived rights of individuals. What this means is that as a matter of UK constitutional law the Government cannot allow for a no deal Brexit without explicit statutory authorisation to this express effect. As matters stand no such statutory authorisation exists.

7. What this means is that if Government policy is indeed one which encompasses a No Deal Brexit, it cannot use the power of suspension of Parliament to further that policy. It would in fact defeat it as if Parliament is prorogued the relevant and necessary No Deal authorisation legislation will not be able to be passed in time for Exit Day.

8. In those circumstances - were the power of suspension to be used - the only relevant active constitutional actor would be the courts which, in order to preserve individuals’ EU law derived rights from the inevitable substantial diminution and/removal which would necessarily result from the Crown’s action or inaction in failing or refusing to conclude a withdrawal agreement with the EU would have to pronounce a mandatory order ordaining the Government to exercise the UK’s power to revoke Article 50.

9. In a representative constitutional democracy however it is far better - far more constitutionally appropriate, for the legislature rather than the courts to make any such decision to keep the Government within lawful and constitutional bounds.

10. Standing back, not only is it clearly the intention of Parliament that it be sitting to determine what options it will authorise the Government to pursue in the run up to Exit Day, but the whole dynamics of the constitution require that the suspension power not be used before there has been clear statutory authority given by Parliament to Government about how to proceed in the face of Exit day - whether that be to seek a further extension of Exit Day, revoke Article 50 altogether or expressly allow for a No Deal exit.

I tweeted a summary of X's view last night but want to address (1) X's logic in more detail and (2) some of the responses to my tweet.

The headline was that X believed BJ was the best way to counteract the threat from the Brexit Party. Although X was a Remainer - and believed BJ could pivot to supporting a second referendum - X was also prepared to contemplate what I understood to be a managed No Deal as an alternative to the Corbyn Government that X saw as being the natural consequence of not meeting the Farage threat.

Most of my tribe will likely have our own views about the damage a "managed No Deal" will do. And they are likely to differ sharply from the near equanimity of X. I certainly said so to X. But what I wanted to focus on is what lies on the other side of the balance for X: the fear of a Corbyn government.

X's concern - and I reiterate that the dinner was unusually frank and honest - was that Corbyn's would be no 'normal' Labour Government. And because of that, keeping Corbyn out had an importance of a greater order.

X elaborated little on why X believed that keeping Corbyn out was so important but I understand, and have some sympathy with, X's basic point. I worked as a tax advisor to Ed Miliband's Labour Party and have also advised McDonnell but I have no ambitions to be part of a Labour Government. This means I have no need to be otherwise than frank in giving some colour to what I understand to be X's concerns. (I should say that what follows is what many of my tribe, including some Labour MPs, say privately about a Jeremy Corbyn Government.)

There is a narrative on some parts of the Left that sees, or finds it useful to portray, a putative Corbyn Government as coming from a moderate European social democratic tradition. But I think, and understood X to think, that narrative is wrong, and sometimes disingenuous.

What is my evidence for saying that? Here are the headlines.

In unguarded moments Labour talks about having the desire to effect an "irreversible" change in the country. That is uncomfortable language to use in a democracy. But more than that: we don't know what that irreversible change looks like.

Most other countries have proper constitutions but the only higher law to which the UK is presently subject comes from the EU. It offers some constraints on some actions that step outside our collective European norms. Those constraints are limited by the fact that the EU is only able to constrain us where we have permitted it to do so but they do operate with greater intensity in the field of economic policy.

Labour's leadership is anxious that we should leave the EU. And I find it hard to rationalise this otherwise than by reference to the fact that it wants to jettison the constraints that the EU represents; it wants unlimited power to remake the country. Labour says we need to leave the EU to jettison rules on state aid. But there is nothing in Labour's 2017 manifesto that EU law would prohibit.

What specific actions does Labour believe EU law would constrain? What more does Labour have planned that it will not come clean about? Before we usher in "irreversible" change, are we not entitled to know what it looks like?

There are, of course, compelling counter-narratives to to the narrative that a Corbyn Government would have unconstrained power to effect irreversible change to unstated ends. Perhaps the most powerful is that he would be limited by the realities of Parliament democracy, a pluralist Labour Party, and the lack of a manifesto mandate. And I suspect X's analysis, ultimately, understates the limitations imposed by these practical constraints. But I wouldn't pretend to be completely unsympathetic to it.

More generally X also believed that it was possible to ignore BJ's work as a paid rhetorician and discover in him the more socially liberal Tory who was London mayor. You'll have your own view about that but I wonder whether X was really persuaded by the argument.

On the available evidence (purely hypothetically because I will vote for neither) I would choose a Corbyn Government over a Johnson one. But the above is the case, as I understood it, made by X, a senior Tory politician not impossibly far from my own tribe, for the alternative.

(a) no withdrawal agreement has been ratified in accordance with section 13 of the European Union (Withdrawal) Act 2018; and

(b) no agreement has been reached under Article 50(3) of the Treaty on European Union to extend the date at which the Treaties shall cease to apply to the United Kingdom.

(2)        Her Majesty’s Government shall immediately put a motion to the House of Commons in the form set out in subsection (3) following. (3)       The form of the motion for the purposes of subsection (2) shall be:

“the House agrees to leave the European Union without a Withdrawal Agreement.”

(4)        If the House of Commons does not approve the motion at subsection (3) above, Her Majesty’s Government must immediately notify the European Council that the notification given by the United Kingdom under Article 50(2) of the Treaty on European Union, of its intention to withdraw from the European Union, is revoked.

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It is clear from the Business of the House Motion of 3 April 2019 that amendments made in the House of Lords can be considered in the Commons on their return.

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When you break up with someone you love all you can see are the things that are not her. Not her jokes, not her smile, not her taste, and so on. Anyway, the last three years have been a bit like that, constitutionally speaking. The pervading all around is the country that we no longer are – pragmatic, competent, careful, vaguely sensible. All you see is poignancy. I say this because of – as you do if you’re a lawyer – the Cooper-Letwin Bill. Those same qualities we once associated with the country were their very brand-values. Perhaps a bit boring – perhaps a bit careful – but y’know, competent. But sadly their Bill is everything we and they no longer are. Technically it is the Swiss cheese of legislation – full of holes. And even if you forgive them that it achieves little or nothing of substance. In fact it’s worse – it’s a dangerous distraction from a very real crisis for the country. Let me explain. What the Bill wants to do is give Parliament the right to force the Prime Minister to ask for an extension of time and the right to dictate how long an extension she should ask for. That seems like a sensible enough ambition, right? Modest but desirable. And there is an important balance to be found – if you’re trying to force legislation through Parliament in the face of a Government that you assume is hostile and a House struggling to agree on anything – between legislation that is sufficiently modest to attract the support of a majority and sufficiently ambitious as to actually be useful. That’s no easy balance – I know because I’ve tried and failed. But this Bill gets that balance profoundly wrong. Let me quickly run through some of the criticisms. The Bill was published today and the idea is that tomorrow the Commons will carve out Parliamentary time for it to pass through the Common and even – if all goes to plan – start its progress though the Commons. Let’s assume, ambitiously, it can clear the House of Commons on Thursday and the House of Lords on Friday and receive Royal Assent the same day. The first stage mandated by the Bill is that, the day after the Act receives Royal Assent, the Prime Minister must move a motion inviting the PM to seek an extension of time until such date as she wishes (but with which MPs can disagree). Does the Bill envisage Parliament will sit on Saturday or Sunday? We don’t know. Let’s assume the motion is moved on Monday. If that motion fails the Bill is defunct; that’s it. More damaging would be if it passes. The Bill is silent as to when the PM has to ask for an extension of time. And if she will not contemplate extending beyond 22 May 2019 but Parliament has forced her to ask for one until 31 December 2019, what then? Could she sit on her hands? In practice she could. But assume she makes a request the next day, Tuesday. The EU Council is not actually meeting until 10 April 2019. But it might agree to hold an emergency meeting and get back to us on Wednesday: “Yes you can have an extension – but we think you need time to get over your national psychodrama and so we’ll extend until when the transition period would otherwise have extended – 31 December 2020 – and only if you hold European Parliamentary Elections.” What then? Well, the Bill is completely silent as to what happens if the EU imposes – as it has signalled it would – conditions for such an extension. Inexplicably the Bill makes no arrangements for dealing with that scenario. And even if the EU came back to us without any conditions for an extension – highly unlikely because EU law seems to require that we hold those elections – but just offering an extension to a different date to the one we’d asked for the Bill completely falls apart. All it says is that the PM has to move another motion in which the House again agrees to the Prime Minister seeking an extension of time – which makes no sense at all. At this stage we’re at Thursday and we leave the EU without a deal on Friday. How on earth – in practice – do we resolve these unanswerables in two days? And what happens if the EU says a flat ‘no’ to an extension – or the conditions are unacceptable to Parliament? What happens in either of those worlds? The Bill maintains a lofty silence. It’s not uncommon for Parliamentarians to put forward poorly drafted Bills. Legislative drafting is a difficult exercise. But the real problem with this Bill is not that it has some gaping holes in it. The real problem is that it’s a sideshow. We’ve taken almost three years to fail to decide what we want – how are we going to move forward? If we want a referendum, what is that referendum on – a question that the confirmatory public vote motion turned a blind eye to? If Parliament won’t agree to a withdrawal agreement then the only options left are No Deal and Revoke – who gets to make that decision (a question this alternative to the Cooper-Letwin Bill seeks to answer)? These are the real questions. The country we once were – and the Parliamentarians they once were – would have faced up to them. But the Cooper Letwin Bill is an awful, awful distraction. I suppose I should find it poignant. But instead, when I think of the consequences for millions of people whose lives will be profoundly damaged by No Deal and who are betrayed by the incompetence of those they trusted, it makes me furious.    

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European Union (Parliamentary Sovereignty) Bill

A

BILL

To

Make provision in connection with the United Kingdom’s proposed withdrawal from the European Union. BE IT ENACTED by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same as follows:—   1          Obligation to seek an extension of time (1)        Subsection (2) applies if, at midday on the second last Day before the relevant day, no withdrawal agreement has been ratified in accordance with section 13 of the Withdrawal Act. (2)        Her Majesty’s Government shall immediately seek the agreement of the European Council under Article 50(3) of the Treaty on European Union to extend the date upon which the Treaties shall cease to apply to the United Kingdom 2          Duty to seek the consent of the House of Commons to leave the EU without a withdrawal agreement (1)        Subsection (2) applies if, at midday on the last Day before the relevant day, no agreement has been reached (pursuant to section 1 above) to extend the date upon which the Treaties shall cease to apply to the United Kingdom (2)        Her Majesty’s Government shall immediately put a motion to the House of Commons in the form set out in subsection (3) following. (3)       The form of the motion for the purposes of subsection (2) shall be: “the House agrees to leave the European Union without a Withdrawal Agreement.” (4)        If the House of Commons does not approve the motion at subsection (3) above, Her Majesty’s Government must immediately notify the European Council that the notification given by the United Kingdom under Article 50(2) of the Treaty on European Union, of its intention to withdraw from the European Union, is revoked. 3          Duty to hold an Inquiry under the Inquiries Act 2005 (1)        This section applies where the notification given by the United Kingdom under Article 50(2) of the Treaty on European Union of its intention to withdraw from the European Union has been revoked pursuant to section 2(4). (2)        Where this section applies a Minister of Her Majesty’s Government shall cause an inquiry to be held under the Inquiries Act 2005 into the question whether a model of a future relationship between the United Kingdom (outside the European Union) and the European Union would be likely to be acceptable to the European Union and could reasonably be expected to have majority support in the United Kingdom. (3)        Where the result of the Inquiry is that there is such a model, Her Majesty’s Government shall make all necessary arrangements for the holding of a referendum on the question whether the United Kingdom should leave the EU and negotiate that model or remain in the EU. (4)        The Inquiry under subsection (2) shall commence within three months of any revocation pursuant to section 2(4). 4          Exit day in the Withdrawal Act Section 1 of the Withdrawal Act shall not have effect until the earlier of: (a)        the ratification of a withdrawal agreement in accordance with section 13 of the Withdrawal Act; or (b)        the passing of a motion under section 2(3) above. 5          Continuing effect The obligation in section 1(2) – and the consequential obligation under section 2 – shall apply on every occasion on which the condition specified in section 1(1) is satisfied. 6          Interpretation For the purposes of this Act, references to: a ‘Day’ are to a House of Commons sitting day; the ‘relevant day’ means the day when, by virtue of Article 50(3) of the Treaty on European Union, that Treaty and the Treaty on the Functioning of the European Union would cease to apply to the United Kingdom in the absence of the entry into force of a withdrawal agreement; the ‘Treaties’ are the Treaty on European Union and the Treaty on the Functioning of the European Union; 'withdrawal agreement' has the meaning given in the Withdrawal Act; and the ‘Withdrawal Act’ means the European Union (Withdrawal) Act 2018. 7          Extent, commencement and short title (1)        This Act extends to England and Wales, Scotland and Northern Ireland. (2)        This Act comes into force on the day on which it is passed. (3)        This Act may be cited as the European Union (Parliamentary Sovereignty) Act 2019.

If, on the day before the end of the penultimate House of Commons sitting day before exit day, no Act of Parliament has been passed for the purposes of section 13(1)(d) of the Withdrawal Act, Her Majesty's Government must immediately put a motion to the House asking it to approve 'No Deal' and, if the House does not give its approval, Her Majesty's Government must ensure that the notice given to the European Council under Article 50, of the United Kingdom's intention to withdraw from the European Union, is revoked in accordance with United Kingdom and European Union law.

It is sponsored by a cross party group of senior MPs from the Conservatives, Labour, SNP, TIG, Lib Dem, and Plaid Cymru. And what it says, stripping away formality, is: if all other alternatives have fallen away, such that the only options left open to the United Kingdom are No Deal and Revoke the choice between the two is one that Parliament rather than the Prime Minister must make. And it should command considerable cross-party support. For Conservative MPs it makes good on the promise that the Prime Minister made to the House of Commons yesterday:

"unless this House agrees to it, no deal will not happen."

For Labour MPs it offers the prospect of delivering on their 2017 Manifesto which stated:

And Labour has continued to ask the Conservative Party to rule out No Deal. The Motion should also be acceptable to supporters of the current draft of the Withdrawal Agreement - or some other version thereof such as Norway + or Labour's preferred withdrawal agreement. It leaves those options available if Parliament approves them - it only applies if they fall away. Nor does it preclude a general election. Because it applies on the penultimate day before exit day - which is a moving target that depends on what we are able to agree with the EU Council - it leaves the door ajar to a General Election. But most of all, it should appeal to democrats. The decision of generational importance for the United Kingdom - between Revoke and No Deal - ought to be one for the representatives of the People in Parliament, and not for the Prime Minister, still less the Prime Minister of a minority Government. And this point is all the more important when one appreciates that Parliament has previously voted to reject No Deal. No constitution founded, as ours is, on the bedrock of the supremacy of Parliament, should contemplate a Prime Minister taking a decision such as this in the face of a clear majority of MPs.  

It’s Wednesday next week and Theresa May has once again failed to get her deal through Parliament – perhaps the Speaker has made good on his promise to rule it out of order or perhaps MPs have rejected it a third time. So she’s not in a position to meet the conditions imposed by the EU for an extension of time.

Let’s stop the clock here and take a look around.

Our options have shrunk to two. There is no time for a referendum. There is no time to negotiate some magical new deal that had eluded Parliament hitherto. There is no time left for a General Election. So our choices are either to leave with No Deal or to Revoke.

Revocation – cancelling Brexit – returns us to where we were before we triggered Article 50. All of the special benefits – the rebate, the opt-outs, the derogations – that we had negotiated for ourselves over the years are ours to keep. And the immediate outcome – remain – is supported, according to all recent polling, by an overwhelming majority.

What’s more, the choice whether to revoke is entirely for us. We don’t need the permission of the EU. The decision over the future of the United Kingdom rests where it should: in our hands.

And Parliament has already voted to reject No Deal.

So what does the Prime Minister do?

In the world I have described, where the sunlit uplands have vanished to be replaced by what every neutral economic forecaster sees as our economy tumbling over the cliff edge of No Deal, and with serious medicine shortages in the offing, I think she would put the question before Parliament. No Prime Minister would choose further to weigh down her legacy as the person who inflicted No Deal on the people with the additional millstone of having done so in the face of the clearly expressed will of Parliament.

In these circumstances, for her to choose No Deal would be the act of a dictator. It lacks any sort of mandate and would defy the clearly expressed will of Parliament. It would be an act from which democracy in the United Kingdom would take lifetimes to recover. And I do not believe she would do it.

I believe she would choose to put the question before Parliament. Thirty three long months after the referendum it would at last be ‘make up your mind time’ for MPs.

What then?

Revocation leaves open the door to a conversation about what we really want our country to be – the conversation we are so often really having when we think we’re talking about Brexit. Revocation does not rule out re-notifying in the future – I do not think there is any serious doubt about this – so long as the decision to re-notify is independent of the decision to revoke. I have discussed this in more detail here.

It also seems to me that the PM could do it. I do not believe – although there are other views – that if revocation by the PM was challenged a court would decide it required an Act of Parliament. I have discussed this in more detail here. If this is right, revocation requires no formality. It could be on crested letterhead, by text message or even carrier pigeon, right up until the last second before we leave on Friday.

But will MPs choose it?

It has always been clear to me that MPs could only choose revocation in an emergency. But if they were asked that question in an emergency – when all other options have vanished, when they were peering over the precipice – I believe they would choose it over No Deal. But only if asked it at the right time.

We will get only one shot.

To add your name to the Government hosted petition please click here.

To email your MP please click here.

To support the work of the Good Law Project, which established our right unilaterally to revoke, please click here.

For the hundreds of thousands who will lose their jobs this is no joke; to save our democracy this is no drill; it is no rehearsal for the sick and the vulnerable who will suffer if the government’s planning fails. If the government will not listen, if it refuses to recognise the supremacy of parliament, we must have a general strike.

I do not write to make that case again here. However, it is of the very nature of a General Strike that it is a response to multiple failures of the institutions of Government and the State. And, unsurprisingly, the ability to deliver a General Strike is closely constrained by the law. With that in mind, I asked Bruce Carr QC to advise on whether and how such a thing might happen. Mr Carr was appointed by the Government in 2013  to lead an Independent Review of the Law Governing Industrial Disputes. He is a, if not the, pre-eminent trade union lawyer presently in practice. His advice follows. If you are willing and able financially to support activities such as these please do so here.

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RE: A GENERAL STRIKE AS A RESPONSE TO BREXIT

OPINION

1. As the current deadline of March 29 approaches and the prospect recedes of a deal being concluded under which the UK continues some sort of relationship with the EU, the attention of many has turned to how to respond to a disorderly ‘no deal’ Brexit. One suggestion of has been that there should be some form of ‘general strike’ in order to show the strength of feeling across the country and as a means of forcing the government to re-think its strategy (such as it is). If this idea gains traction, it seems highly likely that at least some affected employers will wish to take action in response to it. The question then arises as to whether the calling of a general strike would be lawful and if not, what might be the response of (at least some) employers?

2. It may be helpful at this stage to set out a few basic legal principles which are relevant to the taking of strike action. A strike as most of us understand it – and as it is defined in section 246 Trade Union & Labour Relations (Consolidation) Act 1992 – involves a concerted stoppage of work. It is the concerted – or collective – aspect of the action which brings pressure on the employer and forces them to the negotiating table. From an individual’s perspective however, the legal analysis begins with that person’s contract of employment. Strike action will invariably involve a breach of contract by a worker – he or she has agreed under their contract to work at particular time - by taking strike action he/she has broken that obligation. The breach may be sufficient to justify termination of the contract (dismissal) but will certainly allow the employer to make a deduction from wages. However, such actions do not happen out of the blue and there is invariably a call for industrial action which leads the collective withdrawal of labour. The next issue therefore is what are the legal consequences for the person or organisation that calls for such action?

3. A call for industrial action will generally involve committing the tort of inducement to breach of contract. If A calls on B to withdraw his or her labour and this causes loss (or potential loss) to B’s employer C, C will have a cause of action in tort against A for inducing the breach of contract by B. C’s remedies will include an action for damages or an injunction, part of which may require A to take steps to withdraw the call or inducement. For the tort to be established, it must be shown that A knows that he is inducing a breach of contract and that the inducement was an operative cause of the breach – in other words, that the unlawful act (the breach of contract) would or might not have been done but for the intervention of A.

4. This (common law) position is modified in relation to trade unions who would otherwise obviously face inevitable bankruptcy if they called on their members to take strike action – potentially unlimited claims for damages would soon deplete their financial resources. To prevent this from happening and to allow worker to take industrial action, immunity is created in relation to actions based on what are known as ‘the industrial torts’ – of which inducement to breach of contract is by far the most common. The immunity is found in section 219 TURLCA which provides that:

 “an act done by a person in contemplation or furtherance of a trade dispute is not actionable in tort on the ground only - (a) that it induces another person to break a contract or interferes or induces another person to interfere with its performance.” (emphasis added)

5. There are two important points to note from this extract. The first is that the statutory immunity is not exclusively the territory of trade unions – the section is clear in its terms in that the immunity (when it applies) applies to any person not simply to a trade union. There are however additional consequences which flow in relation to trade unions and which I will deal with below. The second point is that the immunity applies only to actions done “in contemplation or furtherance of a trade dispute”. The question which then flows (and which is answered by section 244 TULRCA) is – what is meant by a trade dispute? The opening words of section 244 are important in that they define a “trade dispute” as being one “between workers and their employer”. There then follows a fairly extensive list of sorts of issues that arise in employment relationships including terms and conditions of employment, matters of discipline and machinery for consultation and negotiation.

6. Two consequences therefore flow from section 244 and which then feed back into the immunity from suit provided for under section 219 – first, there must be a dispute between workers and their employer. Plainly a general strike called in opposition to the government’s handling of Brexit would not involve (expect perhaps in the case of civil servants – as to which see below) a dispute between workers and their employer. The dispute would of course be one between those taking strike action and those responsible for a potential ‘no deal’ exit from the EU. Indeed there may be many employers who are sympathetic to the cause but who are nevertheless faced with their workers going on strike. Secondly, even if one were to get over the hurdle of the necessary parties to the dispute (worker and employer), a Brexit-inspired general strike would not fit into any of the subs-sections of section 244 as it would not involve terms and conditions of employment or any of the other 6 gateways set out in section 244(1)(b) - (g).

7. This second difficulty would of course also impact on civil servants who might wish to take such strike action. Although they may be in dispute with their employer and although they are treated as workers for the purpose of TULRCA (by virtue of section 245 – which thus avoids subtle and unresolved questions about the contractual status of those employed by the Crown), the nature of the trade dispute would still mean that it is unprotected within the scope of section 219. Even if one were to try to argue that the strike was motivated by concerns about the stability or terms of their employment post a no deal Brexit, it is highly likely that the dispute would be seen as essentially a political one and therefore not a ‘trade dispute’ within section 244 and thus outside the immunity provided under section 219. There is well-established authority for the proposition that politically motivated disputes fall outside the statutory immunity – see Mercury Communications v Scott-Garner [1983] ICR 74, a case involving a dispute found to be primarily about opposition to the privatisation of telephone network.

8. The upshot of all of this is that anyone calling for a general strike leaves themselves exposed to a risk of actions in tort based on inducement to breach of contract and in relation to which there is no immunity from suit under section 219. As far as trade unions are concerned, even if there were a means by which the difficulties I have outlined in relation to section 219 could be overcome, they would nevertheless by required to undertake a statutory ballot is provided by section 216 TULRCA. In other words, for a trade union to have immunity from suit, not only must any action be done “in contemplation or furtherance of a trade dispute”, but they must also have conducted a ballot of their membership and achieved a majority vote based on at least a 50% voter turn-out – see section 226 TULRCA.

9. It is perhaps worth making the point though that an inducement to breach of contract has to be exactly that – an inducement which then operates on the worker so as to cause him or her to desist from working. There is therefore some scope for taking action which falls short of being an inducement – for example by indicating one’s own intended course of action and leaving others to make up their own minds. It can of course still be argued that even an announcement at that level will operate as an inducement but the level of risk could be reduced by making sure that any announcement made it clear that it was not an invitation to others to follow suit and that if they did so they would in all probability be acting in breach of their contracts of employment which might in turn lead to a negative response from their employer. One notes however, that when conducting a ballot for strike action, trade unions are required as a matter of statute, to put a ‘health warning’ on the ballot paper informing their members that strike action will amount to a breach of contract – see section 229(4). Thus it can be inferred that simply telling someone that what they are doing is unlawful does not make an inducement cease to be one. The strategy of leading by undeclared example therefore remains a risky one, particularly if one rolls forward to the potential cross-examination of a striking worker who says that they took the action they did because they saw others publicly announcing an intention to do something similar.

10. Is there any way of successfully defending an action based on inducement to breach of contract, at least where the inducement is otherwise established? There is, in theory at least, a potential defence based on justification. In OGB v Allen & others [2007] IRLR 608, the House of Lords expressly recognized the existence of such a defence (see for example, Lord Nicholls at paragraph 193). However the scope of the defence remains uncertain and its application to a political dispute such as one based on the government’s Brexit policy, extremely tenuous. In addition, even if one were to run a defence of justification, a defendant’s conduct needs to be justified as against the claimant - see Grieg v Insole [1978] 3 All ER 449. In other words, those calling for a general strike because of what the government was doing or not doing, would have to justify an infringement of the rights of employers who are likely to be wholly innocent of any connection with government policy and who in many cases may in fact be sympathetic to the objectives of their striking workers.

11. Which of course leads to another potential lifeline for those wanting to take strike action. A legal case, if one is brought, is likely to be instigated by a pro-Brexit employer who is affected by strike action – the owner of a chain of public houses might be one possible example. On the other hand an employer sympathetic to the idea of strike action would not only be much less likely to bring a claim but may in fact go one step further and sanction the absence of his or her employees from work. If therefore the action became less ‘general strike’ and more ‘general shutdown’ the risks to the instigators of the action would be substantially reduced. If therefore the call were therefore one made to both employers and employees to show their dis-satisfaction by ceasing their respective economic activities, then the likelihood of legal action recedes. The call would not be for workers to breach their contract but for workers and employers to show their opposition to a potentially catastrophic government policy. However, whilst there are likely to be many employers who are in line with the opposition to a no deal Brexit, the question of how many would be prepared to allow a shut for a day or more as part of that opposition, remains very much an unanswered one. Such action would be unprecedented in my experience – but then, we are living in unprecedented times.

BRUCE CARR QC

Devereux Chambers

  27 February 2019

We’re right to ask these questions of those who seek seismic change from the right – questions about their true motivations and about who funds them and about who benefits from an 'ironic when convenient' stance. We rightly ask them of institutions like Policy Exchange and the so-called Taxpayers’ Alliance and the so-called Institute for Economic Affairs.

But we’re also right to ask them of those who seek similar change from the Left.

Novara Media is the vehicle of the closest thing the United Kingdom has to a Milo figure – Aaron Bastani (shown below, sans clothing).

His antics – recent examples include suggesting we nationalise Airbus to stop it leaving the UK in the event of a no-deal Brexit and describing the Poppy appeal as “white Supremacist” – have earned him regular slots on the BBC.

But what makes him worthy of interest is his stance on communism.

Bastani is the author of “Fully Automated Luxury Communism” (apparently to be published by Verso Books in June 2019) and Novara Media offers for sale such merchandise as a ‘Fangirl Femme Tote’ (“I’m literally a communist”) and a “Tracksuit Communism” top.

And he and Novara regularly – in a style familiar to Milo watchers – express an ‘ironic’ support for communism. Indeed, he has made a conscious choice to position his support of communism thus.

But although we know who funded Milo we don’t know who funds Novara. All we do know is that Novara has gone to extraordinary lengths – including apparent criminality – to keep its funding and ownership structure in the dark.

Novara is not a small operation. This is what the New Statesman reported in September 2017:

Only a year later, in September 2018, Novara reported a more than 50% increase in the size of its core team and that some of those team were now paid.

All of this will involve significant expenditure – Novara rents an office and studio in fashionable Peckham with associated operating costs, pays part of its enormous core team, pays writers and videographers, will pay web and database hosting costs, and so on.

Where does this money come from? Perhaps there is an entirely innocent explanation – but if there is it renders inexplicable the efforts Novara has made to avoid public scrutiny.

Bastani co-founded Novara Media in 2011 along with James Butler. The website www.novaramedia.com was registered in 2012. Between its founding and August 2016 there is little or nothing in the public domain about its ownership. In August 2016 Aaron Bastani started a company called Novara Media Limited (“NML”) with a single £1 share. In October 2017 the Registar, believing that the company was not carrying on business, wrote to NML. And on 9 January 2018 NML was dissolved. Did it ever actually conduct the Novara business? We have no way of knowing.

What about now?

In an email exchange with me on 24 November 2018, Aaron Bastani told me that the company which now had responsibility for Novara Media was Thousand Hands Limited:

But Thousand Hands Limited was only incorporated in March 2018 with two members each guaranteeing liabilities of £1 each. Those two members are Craig Gent and Patrick Best who are also the only directors. Bastani denies being a shadow director of Thousand Hands Limited, declaring (with no apparent irony) that “the truth is out there”.

It is not clear why neither of the co-founders (Aaron Bastani or Patrick Best) have any interest in Thousands Hands Limited, either as owners or directors. It is not clear who carried on Novara prior to March 2018. Indeed, there is very little evidence, apart from Mr Bastani’s say so, that Thousand Hands Limited operates it now.

At the time of the twitter exchange set out above, the Novara Media website contained only one reference to Thousand Hands Ltd, in its personal data policy:

But at the date of writing, that reference has been removed.

Someone, somewhere has taken a deliberate decision to obscure Thousand Hands Limited’s connection with Novara – if such a connection in fact exists.

Moreover, the site's terms and conditions are made with “Novara Media” which has no legal existence and its cookie policy is also with the same non-entity. If you donate money to it, what shows up on your bank statement is a donation is treated as made to “Novara Media Coventry GB” which, again, has no legal existence.

Its personal data policy, too, is with a legal chimera. And if you attempt to purchase something from Novara Media’s Online Shop, again, you appear to contract with the non-existent “Novara Media”.

This level of opacity is likely to involve significant illegality – if not criminality. I won’t run through those obligations in detail but most obviously the law imposes obligations on companies operating websites to disclose certain information. That obligation has been breached and, if Aaron Bastani told the truth when he said Novara was operated by Thousand Hands Limited, it is difficult to avoid the conclusion that a criminal offence has been committed.

Bastani reasonably asks, who funds organisations like the IEA:

But isn’t it about time he came clean about Novara Media which is pushing change far more radical than the IEA? If he is to use Novara Media and the the national platform given to him by the BBC 'ironically' to push communism, should we not know who funds it and him?

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1.— Duty to revoke notification of withdrawal from the EU

(1) The Prime Minister shall notify the European Council of the United Kingdom's revocation of its intention to withdraw from the European Union

(2) This notification of the revocation of the United Kingdom’s intention to withdraw from the European Union shall be made before the date on which the Treaties would otherwise cease to apply to the United Kingdom under Article 50(3) of the Treaty on European Union.

(3) The European Union (Withdrawal) Act 2018 is hereby repealed.

2. Definition clause

For the purposes of this Act ‘the Treaties’ means the Treaty on European Union and the Treaty on the Functioning of the European Union.