2021iv7, Wednesday: Gaslighting by government.

Two smart people find much to fear in the UK government’s views on judicial review. For what it’s worth, I feel the same. And a fundamental, and discriminatory, misunderstanding of objectivity.

Someones are right on the internet: I’m reversing the usual order here, because from a UK perspective this one’s a lot more urgent and important. (Thank you, the Eisenhower Matrix.)

I’m the first to say that administrative law isn’t my speciality. But it’s critical: if we want to live in a world of laws rather than fiat decisions made by those with power (and while the rule of law isn’t perfect, it’s an awful lot better than the alternatives), then making sure our government can be held to account is as important a thing as a thing can be.

Which is why a lot of angst was triggered by the Government’s Independent Review of Administrative Law, led by Lord Faulks, when it was launched. The fear was that it was a stalking-horse for the current UK government – which hasn’t been exactly shy about its desire to do what it wants without question or limitation, or indeed about its rampant levels of corruption – to hamstring judicial review.

In fact the Faulks Review’s report is generally regarded as a pretty level-headed, sensible piece of work. (One or two evidence-related quibbles aside.) It side-stepped most of the really extreme stuff the government seemed to want in favour of relatively modest reforms. But that hasn’t stopped the government making it clear that it wants to go the whole hog, both in its response and in its summary of government submissions

As I said: I’m no expert. But when Joshua Rozenberg calls it an attempt at “emasculating” judicial review, and Professor Mark Elliott – one of the foremost academic experts on administrative law – accuses the government of “constitutional gaslighting”, it’s worth listening.

One point in particular which both Elliott and Rozenberg note, and the trigger for this strong language, is the government’s desire, in any case other than where a government decision was ultra vires (wholly outside its powers) to do away with nullity. 

For the non-admin lawyers, “nullity” means that if a court finds a government decision unlawful, then it is as if that decision were never made. Without getting too deep into the technicalities (that’s what Elliott’s post is for), what the government seems to want is to change that so that in the overwhelming majority of JR cases, the most that will happen is the government can’t do it again. But what it’s done already, however extensive or damaging, and even though it was unlawful, is fine. In other words: its unlawful actions are retrospectively made lawful. 

Why is this gaslighting? Because, as Elliott points out, the justification is apparently that the rule of law requires this kind of certainty. The doublethink is breathtaking: we need to be allowed to break the law and get away with it, the government seems to be saying, because otherwise people couldn’t be certain about whether our decisions would stick or not.

To take a thoroughly imperfect and highly simplified private-law analogy:

  • Let’s say you’ve got a contract with X for X to supply you with widgets. You’ve been paying full whack for them. 
  • But your customers are complaining: apparently the widgets are below the standard the contract requires. You sue X. 
  • It’s a matter of first-year contract law that you’ll want a compensatory remedy: X has broken the contract, you want to be put in the position you’d have been if they hadn’t, so you want the amount you’ve lost as a result of the substandard widgets. 
  • That could be calculated any number of ways (usually how much profit you’ve lost whether through lower sales, lower prices or compensation paid), but the point is that X acted unlawfully, and its past action has to be unpicked. 
  • Damages are an imperfect medium for this, of course – but they’re what’s available. And the critical point is that no-one is saying X gets a free pass for its past behaviour, and simply has to avoid flogging you the rubbish widgets in the future. 

As I said: this is a very imperfect analogy. Private and public law are different, not least because remedies in the latter are rightly discretionary. The public interest has to play a part. But what the government is seeking is indeed extreme. It would emasculate a critical control on government overreach. And that scares me. It should scare you.

Short thoughtThis made me mad.

The tl;dr version: apparently a Washington Post reporter was angry because the paper had failed to support her after she reported sexual assault allegations against a prominent basketball player. The paper first suspended her, then reinstated her but banned her from covering stories about sexual assault.

Why? Because she’d been the target of such an assault herself, and had spoken out about it.

I can’t even. Let’s set aside the rampant sexism inherent in such a move and just consider an analogy. Would we ban someone from covering labour disputes because they’d vocally complained about having been mistreated by a boss in the past? Take someone off the health beat because they’d once sued a healthcare provider?

No. Obviously not. So why on earth do it here?

Bring sexism back into the picture and it’s even worse. As I wrote the other week, I don’t and can’t really understand the experience; but it seems clear that many if not most women will have undergone some form of unwanted sexual conduct in their lives. God willing, mostly at the minor end (although what right do I have to draw that distinction?) – but unwanted, unwarranted and undeserved nonetheless.

Which makes me think that if this happened here in the UK, I could make a pretty good employment discrimination case out of it. Either it’s direct discrimination (s13 of the Equality Act 2010) – if the argument could be made that a female reporter was stopped from working in an area that a male reporter (even one with experience of assault) would still get to write about. Or indirect (s19), if it’s a “we’re not going to let anyone who’s been a victim of assault and who hasn’t kept it to themselves write about it” – since that would amount to a provision, criterion or practice which applied far more to women than men. Or even victimisation (s27), since the reporter in question raised a concern about her treatment and lost the chance to cover these stories as a result.

I’m not saying these are sure-fire cases, if they ever were brought. But couch them in those terms, and the idiotic wrongness becomes even more apparent. And we haven’t even got onto the toe-curlingly ghastly logical end-point of the WaPo position, which echoes with the core argument of sexists down the ages and which the piece I linked to makes crystal clear: since most women have suffered something along those lines, even those who’ve not made it public, no women should be allowed to cover assault against women. They can’t be trusted to be objective, can they? Not women. Leave that to the blokes. Their brains work better. 

For shame, WaPo. For shame.

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2021iv5, Monday: Deliberately rigged?

Right back atcha, CRED.

Short thought: In re the UK Government’s Commission on Race and Ethnic Disparities (or CRED, to give it its backronym): I haven’t read the whole report, so I’m not going to take a view on it as a whole. But as short takes on the bits I have read:

  • At least some of the recommendations aren’t bad at all. (Improve transparency on how algorithms affect non-white people? Definitely. Require ongoing de-escalation training for all police officers? Should’ve happened years ago.)
  • Some of the others (the curriculum looking at the upsides of slavery? Please), and the foreword – written by the Commission’s chair, Dr Tony Sewell – are tendentious at best, and give at least the appearance of being thoroughly intellectually dishonest.

I’m going to cherry-pick one example from the foreword, because it’s particularly egregious and serves – unless it’s wholly unrepresentative of the rest of the report – to undermine the integrity of the whole thing.

Dr Sewell writes:

Put simply we no longer see a Britain where the system is deliberately rigged against ethnic minorities. The impediments and disparities do exist, they are varied, and ironically very few of them are directly to do with racism. Too often ‘racism’ is the catch-all explanation, and can be simply implicitly accepted rather than explicitly examined.

The evidence shows that geography, family influence, socio-economic background, culture and religion have more significant impact on life chances than the existence of racism. That said, we take the reality of racism seriously and we do not deny that it is a real force in the UK.

The Commission was keen to gain a more forensic and rigorous understanding of underlying causes of disparities. However, we have argued for the use of the term ‘institutional racism’ to be applied only when deep-seated racism can be proven on a systemic level and not be used as a general catch-all phrase for any microaggression, witting or unwitting.

Look at two key phrases: “deliberately rigged”. “Deep-seated racism proven on a systemic level”.

And contrast it with the definition of institutional racism used in the Macpherson Report into the murder of Stephen Lawrence, published more than 20 years ago:

The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people. (para 6.34)

Dr Sewell, deliberately or negligently, throws this definition out of the window. It’s a good thing that almost no organisation is prone to being “deliberately rigged against ethnic minorities”. But to narrow the problem to solely that, and declare victory, is to describe night as day.

Just as bad is the idea that institutional racism only exists when “deep-seated racism can be proven on a systemic level”. Let’s leave aside the casual, if not malicious, straw-manning of implying that anything else amounts to a trivialising of the term, and look at how the law deals with discrimination – on race and ethnicity grounds as in other things.

Of particular importance here is s19 of the Equality Act 2010, which deals with indirect discrimination. This is where a “provision, criterion or practice” (“PCP”, as we in the trade call it – often a policy, whether formal or informal) is applied to everyone, but has a particularly detrimental effect on people with the same protected characteristic as the claimant – that effect extending to the claimant herself. The classic example: a height requirement for a job, if it didn’t have a good reason for existing, would discriminate against women and some ethnicities, simply because they’re on average shorter than men (on the one hand) and than other ethnicities (on the other).

There’s no “deliberate rigging” here. The PCP might be applied in good faith. But it’s still discriminatory. And if one PCP, or a clutch of them, has the effect of systematically disadvantaging non-white people – well, how is that not institutional racism at work?

As for the proof point: it’s good law, and rightly so, that the claimant doesn’t have to show the mechanism. As the Supreme Court held in Essop v Home Office in 2017, if someone can show they’re the subject of a PCP and that PCP has caused them to be treated less favourably than someone else, they don’t need to prove exactly how the one leads to the other. Put differently: they don’t need to prove “deep-seated racism on a systemic level”. Frankly, they almost never could. If that were the standard, no-one would ever win an indirect discrimination case. The more so because the courts are well aware that discrimination is rarely overt, or obvious, or amenable to direct proof. Instead, as explained by the Employment Appeal Tribunal in Barton v Investec Henderson Crosthwaite, the norm – not the exception – is to look at what facts are established, and then see whether discrimination can be inferred from them.

In the name of fairness, I must make two big caveats here.

Firstly, there’s a difference between institutional racism in the abstract, and the workings of indirect discrimination against individuals. Obviously there is, and I’m not seeking improperly to conflate the two. But it’s both fair and proper, I think, to look at the Sewell Report in the context of how the law defines discrimination – and, of course, against the backdrop of the Macpherson Report – and interrogate its implications. They’re not good.

Secondly, and I must make this clear: I have no reason to believe Dr Sewell or the Commission would wish the Equality Act (whether s19 or any other element of it) to be undermined. That’s not what I’m suggesting. Not for a second.

But to draw a parallel with harassment, as defined in s26 of the Act: it’s not just a behaviour’s purpose which is important, but its effect. Even assuming good faith on CRED’s part – and, while saying nothing about the Commission’s motives, I have to admit I find it hard in the light of many ministers’ public pronouncements to assume any such good faith on the part of those who commissioned them – maturity means you own the outcome of your actions, even if they’re not what you intended.

Dr Sewell’s foreword may not set out to undermine protection against discrimination. I’m sure he wouldn’t intend to do so. But it may have that effect.

There’s another side to this, one which comes from an advocate’s point of view.

We barristers spend a lot of time arguing over expert evidence. Experts, even when briefed by one side or the other, are meant to serve the court, not the person who pays their bill. It was beautifully put by Thorpe LJ in Vernon v Bosley:

The area of expertise in any case may be likened to a broad street with the plaintiff walking on one pavement and the defendant walking on the opposite one. Somehow the expert must be ever mindful of the need to walk straight down the middle of the road and to resist the temptation to join the party from whom his instructions come on the pavement.

Unsurprisingly, given that any situation requiring expert evidence is likely to be far from clear-cut, each side’s expert report will likely favour its own position – while (if it’s any good) making clear that there are a range of other views, albeit less reliable than the writer’s.

However, just once in a while you come across an expert report in which it’s crystal clear that the writer has started from the desired conclusion and argued backwards, cherry-picking or at the very least selectively weighting the evidence to ensure they end up where they want. These are the reports any opposing counsel loves: they offer the rare opportunity not just to interrogate the findings, but to undermine the credibility of the whole report such that the judge may treat its contents with disdain.

As I said at the start: I haven’t had a chance to read the whole report. So it may well be that the rest of it is far more nuanced and thought-through than the foreword.

But if this was the executive summary of the opposition’s expert report which landed on my desk? I’d be dancing for joy. Open goal time.

2021iii22, Monday: font (mis)judgments.

Like many ex-hacks, I take fonts seriously. Clearly US judges don’t – or rather, they do for the wrong reasons. More fool them.

Short thought: It may be just my background as a reporter, but fonts and layout matter to me. A well-chosen typeface, apt for the task at hand, and a design which leads the eye to where it needs to go and includes enough space for the text to breathe, aren’t afterthoughts. They’re integral to the process of respecting the reader’s attention, and maximising the chance that the words will get past the pupil and into the brain.

None of that changes when you’re an advocate instead of a journalist. The more so, perhaps: obviously a nice design isn’t going to save a hopeless case or slipshod drafting, but all things being equal a pleading or skeleton which makes the tribunal’s life easier can’t hurt, and is highly likely to help.

I’m staggered, therefore, when I discover friends and colleagues who don’t have templates that do the hard work for them, routing around Microsoft Word’s disastrously unpredictable list settings and ensuring that headings, subheadings, and cascading numbering all work consistently and well.

I started developing one about three months into pupillage, with styles for every type of paragraph and heading I needed. I update it every few months. It stands me in good stead. It does the critical job of making sure I only need to worry about the words.

The one thing I never settle on, though, is a font. Not for me Times New Roman; I know it’s traditional, but sweet Jesus it’s boring, ugly and not particularly pleasant to read. Calibri or Cambria? No. Helvetica? A little too grotesque. Arial? Don’t even. Seriously.

I waver between Liberation Serif (for when a serif font is absolutely necessary) and Gill Sans (my BBC background leaves me with a huge soft spot for this). Both are readable, clear, understated and – critically – reasonably compact.

(This is why, sadly, I have to avoid Optima. It’s always been a clear favourite of mine, hinting at serifs and exploiting their readability without actually quite displaying them. But it’s just too big, so even a relatively short skeleton starts looking like something of a novella to a time-pressed judge.)

Sometimes, though, I return to an early love: Garamond. Not only is it a thing of beauty, harking back to the early Apple days (when it was the standard house font for printed materials). It’s also startlingly compact. When you’re short of space and there’s a page limit, Garamond can squeeze in about 15% more words.

Unfortunately, everyone knows this. Including, apparently now, the DC Circuit Court of Appeals in the USA, which has now explicitly said it wants Century or TNR, and specifically doesn’t want Garamond.

Tasteless beggars. Shame on ‘em. Not least for the utter monstrosity of a font they used to issue the edict.

(This is not unduly to critique my friends who don’t see it that way – I’m looking at you, Daniel. But there’s been a nice little twitter-spat brewing – nicely good-natured despite the critically important nature of the subject matter – among UK barristers on this. It seems to have died down, so obviously one shouldn’t pitch in and re-ignite it. Obviously.)

Someone is right, and wonderfully generous, on the internet: Anyone involved in civil litigation needs to understand Denton.

For those fortunate enough to be uninitiated: more often than any sane person would like, things go wrong. Deadlines are missed. Orders or rules are broken. And sanctions are applied by the Court.

When they are, rule 3.9 of the Civil Procedure Rules allows a party to apply for relief from those sanctions – to have permission to file a late pleading, say, or to use an expert witness. But the rule is very brief. How the Courts will apply it in practice is the subject of an ever-expanding body of authority, arising primarily from the case of Denton v TH White [2014] EWCA Civ 906 which set a three-stage test: Was the breach serious or significant? Was there a good reason for it? What, in the light of all the circumstances, is the just thing to do?

Clearly, applying this is – as we lawyers say – an intensely fact-specific exercise. Every situation is different. But that body of authority can help you work out where your client stands – and maximise the odds of getting the result you want.

How, though, to keep track of it? In an act of wonderful generosity, Dr Rachel Segal of St John’s Chambers in Bristol not only does so, but regularly shares the results in a PDF, currently more than 200 pages long. If you’re seeking relief from sanctions, or opposing it, you can’t do better than to start with Rachel’s document, current as of last month.

I was reminded of Rachel’s magnum opus by an equally superb resource, which I must have mentioned before: Gordon Exall‘s Civil Litigation Brief website. How the man finds the time to do any actual billed work is beyond me, but this site is an absolute godsend, particularly for examples of how the courts deal with knotty procedural issues.

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2021iii19, Friday: arbitrage while the music plays.

How long can Uber’s “labour law arbitrage business” last?

Short thought: There are times when someone comes up with a phrase that perfectly sums a concept up. And you therefore have to lift it – giving due credit, of course.

This week’s example came from FT Alphaville, which caustically, and I think accurately, described Uber as “everyone’s favourite labour law arbitrage business”.

This is beautiful. The whole Uber business model – even more, perhaps, than other gig economy businesses – rests on treating its drivers as self-employed in law, but as under contracts of service (ie workers) in practice. (This was, after all, the essence of the Supreme Court’s judgment earlier this year.)

The reason is simple. As many, many people have documented over the years, the sums just don’t add up otherwise. To succeed, Uber needs to undercut old-fashioned cab services (since its technological advantage is no longer quite so extreme as once it was). So it needs to externalise the significant costs of running a real-world service – which isn’t something that benefits from the zero-marginal-cost scaling advantage of a purely online ones-and-zeroes business – onto its drivers, while retaining sufficient control over them to make sure it can both supply the services with relative certainty and avoid the risk of drivers genuinely running their own “competing” businesses.

Even with this externalisation, and the relentless driving-down of payments to drivers, Uber still loses money hand over fist. Smart people have long opined that the only way the company could ever make a profit is to either have genuinely driverless cars – not going to happen, not in the near enough future – or to drive every other cab firm out of business and hike fares.

At some point, the music will stop. And setbacks to the core arbitrage play like the Supreme Court judgment may well bring that closer. Uber is resisting the judgment, or at least parts of it, while proudly declaring how wonderful it is for complying with the bits it thinks it can just about live with. We’ll see how long that works.

(I note, too, that it spends a lot of time talking about the need for a kind of “middle way” for workers between employee and self-employed status. Which – the sceptic might observe – isn’t a bad definition of “limb b” worker status, which is what the Supreme Court said Uber drivers were. Whereas what Uber seems to be pushing for – unsurprisingly – is something much closer to “self-employed, but with a bit of help”. Which really doesn’t seem to address the point.)

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2021iii8, Monday: even the wisest can stumble.

A small and humble disagreement with the UK’s best commentator on the law. And the joy of newsletters: a welcome return to pre-Web habits.

Short thought: Joshua Rozenberg is fantastic. He is the best reporter of the law I’ve ever encountered. (Although the late, and wonderful, Marcel Berlins – who taught me media law many years ago – probably runs him a close second.)

I subscribe to a lot of newsletters. Almost always, I only take the free version. But I pay for Joshua’s, willingly and happily. As a working barrister and an ex-hack, I find his insight and wisdom unmissable.

But even the wisest can stumble. And I think Joshua’s just done so.

He ends an otherwise (characteristically) excellent piece about the welcome elevation of Dame Vivien Rose to the Supreme Court with the following quote from the President of the Court, Lord Reed:

Having spent a substantial part of her career working in government and parliament, Lady Justice Rose will add significantly to the diversity of experience on the court. Her outstanding legal ability and breadth of experience will be invaluable in maintaining the high quality of our judgments and our reputation as an international centre of legal excellence.

To which Joshua adds:

He’s right. Diversity of experience is the most important diversity of all.

In one sense, he’s right. England’s judiciary (and its Bar) is less pale, male and stale, less monocultural, than it used to be. It still has a very long way to go. Dame Vivien, like Lady Hale before her, isn’t from the “traditional” career path of the independent Bar. And also like Lady Hale, we’ll be much the better for having her on the Court.

But he’s also wrong – not so much in the underlying sentiment but in putting it this way, in this context. It reads altogether too much as though Dame Vivien’s “diversity of experience” – as a Government lawyer as opposed to a product of the self-employed Bar – is distinct from, and more valuable than, that which emerges from actively looking to get more non-men, non-white and non-public school/Oxbridge people into the judiciary.

If Joshua meant it that way, it would be a ludicrous, and foolish, tension to encourage. It would be so at any time, given how often we still here the old, old voices that seek to paint every attempt to broaden the pool of gender and ethnicity in particular from which the benches and the Bar is drawn as a dilution of quality, rather than the other way round.

But right now, when government ministers use “woke” as a rude word, when all it really means is “genuinely aware that bias and prejudice are still alive, kicking and deeply rooted in how our society works”, it’s more dangerous than ever.

Our Bar and judiciary need diversity of experience. And they need it as much from throwing open our profession to as wide a base as possible, in every way possible, as they do from making sure lawyers with non-traditional career paths – even truly fantastic ones like Dame Vivien – get the nod.

I should make one thing clear. I can’t believe Joshua did mean it that way. I’m confident that giving comfort to those who, deep down, see righting the wrongs meted out on the grounds of race, sex, faith, gender or sexuality as some kind of discrimination in itself – or who may not think that, but find it a convenient punching-bag for political gain – would be the last thing he would would want to do.

It’s a shame that, inadvertently I’m sure, that’s what he’s done.

Someone is (pretty much always) right on the internet: More about newsletters, I’m afraid. This time, not a lawyer, but an academic.

John Naughton is one of the people I turn to when I want to understand what’s happening in the online environment. He’s been studying and writing about it for years. And his writing is accessible, thoughtful and considered.

Unsurprising, then, that I’ve been following his blog – Memex 1.1 (for those who don’t know what Memex 1.0 was, here’s a rabbit hole to disappear down) – for longer than I can remember.

These days, John writes something every day. A curated series of pictures, music, commentary and links. How he sustains it I don’t know. And I can’t remember a single edition which hasn’t included something I’m desperately glad I was pointed to. Not one.

And while it appears on his website, he also sends it out via Substack (for free) each morning. Needless to say, I subscribe.

The funny thing is, the wildfire growth of newsletters (yes, I know – like this one) is something of a reversion to the early days of the online world. Remember that the public Web is less than three decades old. Before then, and for many years thereafter, email newsletters in plain text were the standard way of “publishing”. I’m a huge fan of their return.

While I’m not giving up on RSS, I’m happy to have a dozen or more people’s newsletters popping into my inbox on a regular basis. I may have less time to read them than I did (the one thing I miss about commuting). But the habit of regular writing is a valuable one, and those who commit to it tend – counter-intuitively – to think before they write, and write thoughtfully as a result.

John is a pre-eminent example of that breed. I commend his newsletter warmly.

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2021ii22, Monday: tl;dr.

Lord Leggatt is a judicial hero. And, as we now know, he understands that somethings really are too long; didn’t read. Also: creative conflict at its best.

Short thought: Smarter and better minds than mine have crawled all over the Uber judgment, handed down by the Supreme Court on Friday. It’s justifiably been the centre of attention in the employment law world: although obviously deriving from a specific set of facts, it nonetheless lays down a clear line as to whether companies can seek to dictate through contract terms whether their staff are workers – to whom they owe at least some employment rights – or independent contractors, to whom they owe nothing but payment for services rendered.

The tl;dr version: they can’t. It’s a question of statutory interpretation, not pure contract law. And it’s the reality of the relationship, not the words on the page, which make the difference.

Big news. Gig economy “employers” will have been poring over their business models and contracts over the weekend. Many, I anticipate, will find themselves in (for them) uncomfortable territory. I’m of the view (for what it’s worth) that the Supreme Court has gone the right way on this. That said, what will change straight away? Perhaps not much. Individual workers may need themselves to sue, given that the government seems notably uninterested in doing anything about it themselves. (The post of Director of Labour Market Enforcement, occupied on an interim basis by Matthew Taylor, falls vacant at the end of this week. He offered to stay in the job for nothing. He was turned down. Apparently none of the candidates were suitable. So clearly this wasn’t a high priority.) And as we’ve seen, the backlog in the employment tribunals, largely thanks also to government policy, is vast.

Among the mass of commentary, Jason Braier (unsurprisingly – his #ukemplaw Twitter form is near-unrivalled) has one of the best explanations. Fifty-plus tweets, but worth following through all the way. Although a pupil at our chambers, Ian Browne, managed to sum the whole thing up beautifully in two paragraphs:

But it’s not Jason’s (or indeed Ian’s) splendid work that I want to point to. No; it’s the magisterial judgment itself – the work of Lord Leggatt, a relatively recent addition to the UKSC. Friends and colleagues who’ve appeared before him are fans; even those he’s monstered with his questions or found against. I haven’t risen to those heights. But he was already one of my judicial heroes thanks to his judgment in the case of Gestmin v Credit Suissewhich I wrote about recently as the starting-point for the acceptance by the English courts (the Commercial Court, at least) that the fragility of memory was a critical consideration in how justice could be delivered.

Well, Lord Leggatt has done it again. We’ve all done that thing where you turn to the back of a judgment to find out the outcome, only to find there are 50 paragraphs of obiter addenda to wade back through. Not so here. In a glorious judicial tl;dr of his own, and perhaps in the knowledge that many reading a judgment with such significance for working people won’t be lawyers, Lord Leggatt gives the outcome upfront in paragraph 2, in just 39 words. Bless the man.

Someone is right on the internet: “Why can’t we just get along?” Because sometimes, just sometimes, we need to argue.

Argument is not, in itself, a bad thing. Debate and disagreement are like mistakes. Without them, you can’t learn, or grow, or find out you’re wrong. And if you can’t do those, there’s no hope for you – and no point in listening to you.

In this bit of writing, Ian Leslie calls on two examples. The first is an interview between noted right-wing poster-boy Jordan Peterson and Helen Lewis. Lewis is a great reporter, but this interview caused lots of people to accuse her of malice or unfairness, or (grow up, people) of some kind of “woke agenda”, in how she treated Peterson. I can’t see it. As Leslie suggests, she seems to be engaging in – to British eyes – a perfectly normal piece of searching and probing, but by no means unfair or aggressive, interviewing. To which Peterson seems to respond in a notably thin-skinned, take-it-personally manner. Odd, for someone whose shtick seems to be all about people toughing up, taking responsibility and stopping with the whining.

But it’s the second I really loved. You’ll have to scroll all the way down for it, but he describes a row (apparently well-known to Beatles fans, which I’m not particularly) between Paul McCartney and George Harrison during a rehearsal for a TV performance. Apparently it’s cited as an example of why the Beatles split, but Leslie instead sees it as an example of how conflict between collaborating artists can take their creativity to still loftier heights:

Maybe this won’t be interesting to anyone who isn’t a Beatles nerd but even if you’re not, isn’t it incredible have a raw and unfiltered record of one of the all-time great creative collaborations, as it happens – tensions, irritations, disagreements and all? If it is a little boring, that’s interesting too – it shows how magic can grow out of a long series of banal interactions. Anyway – it’s during this extended argument that Paul coins a favourite quote of mine, applicable to any creative process: “It’s complicated now. If we can get it simpler, and then complicate it where it needs to be complicated.” Whether you’re stuck on a song, an essay or a coding project, this is great advice: strip it back to its simplest form and then let the complications force their way in. (A little later, Paul rephrases it: “Let’s get the confusion unconfused, and then confuse it.”)

“Get the confusion unconfused, and then confuse it.” Wonderful. My new theme song.

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2021ii19, Friday: “Sleaze”… and a Free Man of England.

Rabbie Burns was right. We need to see oursels as ithers see us – particularly where corruption is concerned. And on another tack: a lovely court victory over a dangerously deluded sovereign citizen.

Short thought: The immortal Robert Burns was right when he asked for the gift of seeing oneself from the outside. (From To a Louse, although personally I prefer To a Mouse, which introduced the phrase “the best-laid plans of mice and men” into the language.)

This gift is particularly important for those of us in so-called “developed” countries who work on anti-corruption. It’s fatally easy to look at a healthy CPI score, fold one’s hands over one’s stomach, and see corruption as somebody else’s country’s problem. Instead of looking at what happens here from the outside – and judging it accordingly. (Joseph Cotterill, now the FT’s southern Africa bureau chief, used to do this beautifully, as this Twitter thread delivering a stiletto to the kidneys of UK politics in 2017 demonstrates.

I’ve long felt the UK has a particularly acute failing here. The first general election I remember in real detail was the 1997 one. In the runup to it, the papers were full of allegations of “sleaze”, suggesting something rotten at the heart of the Tory government which was by then 18 years old. 

But here’s the thing. “Sleaze” was a catch-all term, encompassing sexual wrongdoing, political favour distribution and what, anywhere else, we’d call corruption or bribery. By using the term, not only did we elide these differing concepts into some generalised moral failing. We also avoided having to look in the mirror and admit it: we’ve got a corruption problem. Which both rubs our collective ego, and protects those in power who are quite happy for the “you scratch my conscience, I’ll drive your Jag” status quo to continue.

And this is where Burns’s gift would come in so useful. A good exercise when looking at some bit of skulduggery involving the abuse of power in the UK is always to say: if this happened in Nigeria, or Afghanistan, or Indonesia, or Venezuela, or any other country in the lower reaches of the CPI, what would we call it? If we’d call it corruption there, we’re dishonest not to do so here.

Take a classic small-scale example. You’re on a local authority planning committee. Your child is a tennis player with semi-pro. A local tennis club has a great record for training young people, but a waiting list. You’re having lunch with a friend, a developer. His husband is on the club membership committee. Your child is mentioned. The waiting list unaccountably shortens soon afterwards. When a planning application from the developer next emerges, do you disclose your child’s new-found membership?

Change the story a bit, so it’s happening in a more ostensibly corruption-prone place. Change the tennis club to a university place or an internship. Change the local council to a national quango. Would it be corruption? Would it, at the very least, require disclosure and probable recusal?

I think so, yes. But I wonder how many people, in the UK context, would have thought so. 

As I said, this is not a new thought. But it’s been sparked anew by two things.

First, my jottings on fraud were responded to by a former colleague whom I deeply respect, Mark Ward. Mark was a tech correspondent at the BBC, but is now senior research analyst at the International Security Forum. Mark and I are both baffled by how a crime with such huge (both deep AND broad) impact can be accorded so low a priority. Now, I can’t help wondering if it’s part of the same picture: a cross between wilful blindness and contentment that someone else is paying the bill when the grown-ups keep doing what they do.

Second, a throwaway line in a newspaper report noted that the government’s anti-corruption champion, John Penrose MP, is married to Baroness Dido Harding. The former head of TalkTalk (widely regarded as a considerable failure in that role, having presided among other things over one of the most egregious corporate data protection breaches in recent UK memory), who was put in charge of Test and Trace without any competition or assessment. And who is widely regarded as having failed extensively in that, as well.

Yes. The person in charge of anti-corruption is married to someone who’s seen (with a good deal of justification) as a major beneficiary of nepotism.

Again. Put this in another less self-satisfied country. What would it look like? How would it be viewed?

(Update: an earlier version of this got Dido Harding’s old job wrong. She was made CEO of TalkTalk, not Carphone Warehouse, when the former was split from the latter.)

Someone is right on the internet: I’ve been fortunate never to have had to deal personally with so-called sovereign citizens. Those people who in the US start talking about black helicopters and the illegitimacy of all things federal; and who over here tend to start blathering insanities about Magna Carta (thank the blessed David Allen Green for wading through the muck on that one).

Sarah Clover, from King’s Chambers, wasn’t so lucky – but at least it’s produced a fascinating case, where a gym owner in Preston trotted out many of the greatest hits which made him – as he put it – a “Free Man of England”: governing only by consent, a redefinition of the Common Law, and the non-applicability of the Coronavirus Regulations because they were a “statute of legislation”. No, I don’t understand that tautology either. 

Anyhow, read Sarah’s piece. It’s great.

Only one problem. The poor man seems not to have mentioned Magna Carta. Missed a trick there. No doubt poorly advised…

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2021ii5, Friday: Malleable memory.

The litigation process causes witness inaccuracy – and the courts are recognising that. Also: a wonderful hymn to the joy of errors. And why stories can help fight corruption.

Short thought: Job one, when you’re a barrister, is to read the papers. 

In olden times – that is, a year ago – these would normally arrive in fat bundles. Possibly, even today, tied up in pink tape. (Ah, the nostalgia.) Nowadays it’s PDFs. Already put together if you’re lucky. Buried in dozens of nested emails if you’re not. (The fact that I’ve written about this three times in the past six months shows how painful this is.)

But however they come, knowing the papers, inside out, is critical.

In commercial litigation this is if anything more important. The reason? Over the past decade or so, judges in the English commercial courts have recognised the fundamental problems with oral witness evidence, long considered the gold standard and backbone of any trial. 

The first really stalwart example of a judge making it clear that documents, not people, were what they would primarily rely on was the case of Gestmin v Credit Suisse [2013] EWHC 3560 (Comm), in which Leggatt J (now Lord Leggatt JSC) made clear at [15]-[22] his awareness that memory is fallible, that the process of civil litigation itself risked making it still more fallible, and that the mechanics of memory formation itself meant relying on witness recollection except as a means of scrutinising the documents in the case was usually a futile exercise.

There’s been push and pull about Leggatt J’s points ever since. But at their heart they stand up. They reflect, among other things, the growing and spreading knowledge of how cognitive biases function (warning: that link is a rabbit hole from which you may not emerge), and the fact that memory is a construct, not a recording. 

The Courts’ recognition of this, at least in commercial litigation, is now official. Enshrined in a new practice direction (PD57AC for those keeping score – starting at p64 of the linked PDF), are rules about witness statements at trial which seek to mitigate the adverse effects of the litigation process and improve the odds of witness evidence actually being useful. The explicit recognition of what one might call the Gestmin principle is at para 1.3 of the appendix, at page 69 in the PDF I linked to:

Witnesses of fact and those assisting them to provide a trial witness statement should understand that when assessing witness evidence the approach of the court is that human memory:

(1) is not a simple mental record of a witnessed event that is fixed at the time of the experience and fades over time, but

(2) is a fluid and malleable state of perception concerning an individual’s past experiences, and therefore

(3) is vulnerable to being altered by a range of influences, such that the individual may or may not be conscious of the alteration.

The other reason for the PD (and this was made clear on a enlightening webinar by the Leeds BPC Forum earlier this week addressed by Andrew Baker J) is the burgeoning use of witness evidence to make arguments. Judges are getting more and more annoyed by this – one can do little better than look at the many, many posts on Gordon Exall’s Civil Litigation Brief (this is just the latest) on this subject for excellent examples. 

Either way, though, the message is clear. Know your papers. Make them tell the story you need to tell, and use witnesses carefully to buttress that story. Because if you don’t, the other side definitely will.

Someone is right on the internet: Speaking with the experience that comes from being the parent of a 14-year-old, her generation seem to have a harder time with perfectionism than mine ever did. I don’t know why, but I suspect the welter of examples, spread across countless media, of people who seem effortlessly to succeed – with all the hard work in the background neatly occluded – may have something to do with it. The fact that Gen Z simply, frankly, has it harder than we do, with narrower pathways to success and far greater consequences for screwups along the way, is probably also relevant.

Even so, I remain a true believer in the principle that to be good at anything, you have to be OK with being bad at it for a while as you try to improve. And that it’s OK – no, it’s critical – to be OK with getting it wrong. So long as you only get it wrong the same way once. I remember interviewing someone for a job once who surprised me at the “do you have any questions for me?” stage by asking how I’d deal with her making a mistake, which sparked a great discussion about the importance of assessing people by how they correct and learn from errors, rather than by the errors themselves. A reallybrave question, but in fact an excellent one – one which made sure she got onto the final shortlist. 

So this piece by David Duchovny (yes, that David Duchovny) struck a chord. Starting with a Beckett quote – “Fail again. Fail better” – he weaves a hymn to the importance, and sometimes even the joy, of screwing it up and trying over. Or, as Fred and Ginger put it, “Pick yourself up, dust yourself off, and start all over again.” He also used a word I’ve never seen before, but am now in love with: hamartia, which he describes as the “near miss” that delivers an electric energy driving the next attempt. (Dictionaries give a darker meaning: the tragic flaw in a hero that triggers their downfall. But Duchovny’s sentiment, if not his usage, is bang on.)

Seriously, it’s a great read. (Sorry, paywall again, but The Atlantic’s is metered so you should be able to take a look.) And I can’t sing this song often enough. 

Thing I wrote: In less plague-ridden times, Fiona Horlick QC – a fantastic advocate and a genius at health and safety and disciplinary law – is my roommate at Chambers. 

(Barristers’ chambers are usually, although not always, set out in individual rooms rather than open-plan spaces. Our work doesn’t lend itself to the disruption and lack of privacy of open-plan. But often those rooms are shared with one or two others – which both cuts the cost and makes for a pleasant collegiality. Alex Haines, one of only a handful of lawyers who are genuine experts in the law of international organisations like the IMF or the international development banks, is in our room too.)

For the moment, of course, we’re physically far-flung. But we’re still working together. And Fiona and I put together a piece for the Government’s Public Sector Counter-Fraud Journal (link to the whole thing in PDF; we’re on page 5) on how the stories people tell themselves can encourage corruption – and how we can use those stories to quell it or find it as well. My past life as a reporter means that perhaps I look too much for narrative in my work as a barrister, but finding the right story can be a hugely important tool (a bit like finding the right analogy – see the last chunk of this piece). And understanding how the stories which people tell themselves can influence their actions is important for this, too.

Thing I said: My friend Daniel Barnett, who’s been mentioned in these annals before, was as upset and (frankly) perplexed by the Times’s assault on employment tribunals and their judges as I was. So he corralled – sorry, persuaded – several employment lawyers to take the Times’s inaccurate claims apart on his YouTube channel. I was one of them. Personnel Today followed us up – thankfully with a pic of someone else, not me. Phew.

Incidentally, judges aren’t the only people who can’t answer back. Think of all the tribunal staff who’ve been working their hardest, amid this nightmare of a pandemic, to keep the show on the road and to keep delivering justice. They don’t have a voice either, but their morale is hit just as badly by inaccurate garbage like this. We’re fortunate to have a voice; as (for barristers) self-employed professionals, speaking up for people is our job. So in this we’re speaking up for them, too.

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2021ii3, Wednesday: Getting away with it.

Fraud hurts huge numbers of people, hugely – yet it’s a law enforcement also-ran. When might that change? And, staying with crime, fantastic writing about my favourite detective author of all time.

Short thought: For anyone involved in dealing with fraud – as an investigator, an insurer, a lawyer or otherwise – the past couple of decades have been frustrating beyond bearing. Those 20 years have seen the resources devoted to investigating and prosecuting private-sector fraud dwindle to near-nothing, while fraud grew to half of reported (if not always recorded) crime (as the online environment both created new attack vectors and exposed a huge population of potential targets) and losses estimated by some in the hundreds of billions.

Some blame banks. And they’re not beyond reproach: the schemes set up to repay victims of authorised push payment or APP fraud (where someone bamboozles you into making a payment to the wrong recipient) have been dogged by reluctance, under-resourcing (again) and a tendency by some institutions to pin the blame on the victim far more than may be entirely justifiable

But there’s a fundamental tension here, as exposed in the recent case of Philipp v Barclays Bank [2021] EWHC 10 (Comm). A bank’s primary duty is to carry out its customer’s instructions, not to police those instructions on the off-chance there’s a fraudster behind them. There is a duty to act on reasonable suspicion of fraud or dishonesty; it’s called the Quincecare duty. But it’s of limited application, and (as the Court found in Philipp) doesn’t apply where it’s the customer themself, rather than an agent or someone purporting to act for them, who’s delivering the instructions. The public policy trade-off between the mandated duty and fraud protection is a real one, not something which can simply be refashioned on the fly.

So what about the regulators? Most fraud isn’t undertaken by regulated institutions. No doubt regulators such as the FCA could do more to police the perimeter of their powers – and as Dame Elizabeth Gloster has found in relation to the London Capital & Finance fiasco, it has often been shortsighted at best in how it approaches that task. But it’s not a complete answer by any means.

I’m not sure there’s a simple answer. (Which calls to mind HL Mencken’s maxim: for all complex problems, there’s an answer that’s clear, simple and wrong.) But a recent report by RUSI suggests a re-framing of the problem which I like, and which I think puts the emphasis where it belongs. 

RUSI sees fraud as a national security issue. It takes the UK’s three national security priorities – protecting our people, projecting our global influence, and promoting our prosperity – and points out that fraud does serious damage to all three. It impoverishes and immiserates the people of the UK. It damages our standing by making us seem to be a paradise for untouchable crooks (including substantial involvement by organised crime) and launderers. And it undermines our prosperity by leaching from the public purse and leaving us with a financial system and economy where transactions can’t be trusted. 

Taken together, it posits (I think rightly) that fraud imposes a uniquely damaging disruption not only financially but on society as a while

It suggests what it calls a “whole-of-system” approach, whereby non-criminal justice state actors including intelligence services work together with the criminal justice system to tackle the issue. Unsurprisingly, it calls for significantly enhanced funding – not just for existing specialist forces such as the City of London Police, but nationally. And it makes the case for clearer accountability and leadership.

Of course, you could say we’ve heard this all before. And yes, we have: the 2006 Fraud Review said some of these things, albeit in a different way, and a retrospective 10 years later found little had changed

But the losses are now staggering. Everyone knows someone – a relative, a friend, a business partner – who’s lost sometimes significant sums to fraud. The pandemic has created huge new opportunities for fraudsters. And if the government is even slightly serious about “levelling up”, or “building back better”, then keeping billions in honest circulation rather than in fraudsters’ pockets has got to be a good idea. Aside from anything else, the well-known principle of loss aversion indicates that if someone loses cash to fraud, they’re even less likely to spend what they have left. Not a great help to a pandemic-stricken economy.

And that starts, inevitably, with resourcing it in line with the huge harm it does.

Put more simply: if not now, when?

Someone is right on the internet/things worth reading: I’ve been a sucker for a good mystery all my life. As a kid, I thought Poirot and (later) Miss Marple were the best. Lawrence Block’s Burglar books were a later unashamed pleasure. I haven’t quite read all of Rebus, so I’ve gone back to the beginning and started over before reading the latest ones.

But if you backed me into a corner and said I could only have one detective fiction creator, there’s no contest. Dorothy L Sayers was, is and probably ever shall be the one for me, and Peter Wimsey is my sleuth. Five Red Herrings takes the cliche of train timetables and makes a masterpiece from it; Murder Must Advertise gives us a glorious double life; and Busman’s Honeymoon somehow combines mystery and romance into a piece of sterling literature.

But Gaudy Night is special. The point of view changes to Harriet Vane, initially a secondary character (in Strong Poison) but now a co-star in her own right. And – as beautifully explored in the New Yorker (sorry, paywall – but this could be one of your monthly freebies; it’s worth it) – an exemplar of how Sayers laid the groundwork for today’s flowering of superb female mystery authors. The article’s worth a read. And the books? Just go for it.

(I should also mention the supremely well-done BBC Radio adaptations – all available on Audible, with Ian Carmichaelas Wimsey and Peter Jones, famous among geeks for being the voice of The Book in H2G2, as Bunter. Not quite up to the Sherlock Holmes standard set by Bert Coules with Clive Merrison as Holmes and Michael Williams as Watson – but really, really close…)

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2021ii1, Monday: Hack job.

The Times publishes a misleading set of hit pieces about employment tribunals and judges. One of those it insults is a colleague. I can’t in good conscience let it lie.

A departure today from the normal routine of short thoughts etc. A colleague of mine, Natasha Joffe, has just been the subject of a piece of shoddy journalism. And I can’t let it pass. There aren’t that many barristers who used to be reporters, but I’m one of them; and this ought never to have passed the subs, let alone made it to publication. That it did reeks of an editorial hatchet job. 

For tl;dr purposes, I’ll put it simply. The overall impression of this piece, that employment judges being appointed are somehow substandard, is simply wrong, and unfair to the individuals named. It tells a one-sided story, ignoring vital context, and thus gives a misleading picture in all but one respect. That one thing is that the system is overburdened; but that’s not the fault of “inexperienced judges”. It’s the result of political decisions coming home to roost, to everyone’s cost.

(To be absolutely clear: this is my personal view, not that of my Chambers. But I suspect I’m not alone.)

The piece in question is in the Times. It accompanies an equally shoddy news story. (Update: a friend has provided shareable links to both pieces which are OK for non-subscribers legitimately to access.) The main assertions in the piece, and the news story it accompanies, are as follows (note these are the Times’s assertions; my repeating them here doesn’t mean I think they’re right or true):

  1. The MoJ is rushing to appoint “inexperienced” employment judges to deal with a huge backlog. A “hearings free-for-all”, the paper calls it.
  2. Employers are unfairly treated by tribunals, because they can’t recover their costs. 
  3. The backlog is because of a “surge in demand” since the 2017 Supreme Court case which ruled that fees were unlawful.
  4. The surge is mostly unrepresented litigants in person, some of whose cases “seem extraordinary”.
  5. The tribunal system should change its rules and throw out more cases, but is instead hiring inexperienced judges selected on the basis of lower standards. 
  6. The “lower standard” being no need for previous judicial experience. An anonymous “judicial source” said it was “quite a stretch for someone to be thrown in immediately as a full-time judge”.
  7. Profiles of several of the “inexperienced” (and by inference unsuitable) new judges follow. One is Natasha Joffe (a former member of my Chambers). She started work in September 2020. The Times says she is “among inexperienced judges appointed with backgrounds that might appear more embedded on one side than the other in employment issues”, saying that “her brief biography by the MoJ contained no previous work as a judge but stated that she was called to the Bar in 1992”. It also notes that she wrote “The Mumsnet Rules”.
  8. A number of other legal professionals are called out by name as well. One is snidely described as having previous judging experience limited to “choosing the winners of the Southport Writers’ Circle International Poetry Competition 2009”. Others appear to be unsuitable, in the Times’s view, because they were (like Natasha) authors, or because they were solicitors whose work was closely involved with trade unions.

Good lord. Where to start? Taking them in order:

  1. “Inexperienced” is an idiotic word to use here. Employment judges often, but not always, work as “fee-paid” (ie part-time) judges for a while before they go full-time. But fee-paid judges do the same work, in the same way. So everyone starts somewhere. There’s no difference in practice between a fee-paid judge and a salaried judge on day one, and no requirement to do the one before the other. So the point is to look at whether they can do the job. And taking Natasha as an example: she’s been doing employment law for 28 years (and was in fact appointed in 2019). She knows her stuff. To call this a “hearings free-for-all” is a cute phrase, but utterly misleading. Not to mention stale beyond belief.
  2. The costs-free environment is deliberate, and fairer than the alternative. If you’re suing your employer for a few hundred or a few thousand pounds, and you knew that if you couldn’t prove your case you faced costs of ten times that, you’d give up. Similarly, if you’re an employer, at least you can reasonably predict what it’s going to cost you to fight. You can insure against it, without the worry of the other side’s costs on top. And having just lost two cases for claimants in the past month (ouch), I think I can say that tribunals don’t routinely favour one side or the other.
  3. The “surge in demand” since UNISON in 2017 is real. What the Times fails to make clear is that between 2013 and 2017, during the period when taking (say) a discrimination case all the way to a final hearing cost claimants £1,200 in fees, the number of cases fell by around 70%. That’s mostly not people jacking in nuisance cases. That’s real people, with real grievances, being denied justice because they couldn’t afford it. The sharp fall allowed the Government to ditch large numbers of employment judges. The backlog is because there aren’t now enough to cope with what is, in practice, largely a reversion to the mean. In other words: the mismatch between judges and cases is an artefact of political decisions, coupled with the effect of Covid. Not a surge in people bringing pointless cases.
  4. Yes, there are lots of litigants in person, because there’s no legal aid. Legal aid helps weed out useless cases. No-one would deny that useless cases get brought. But often they get thrown out. Rule 37 of the Employment Tribunal Rules of Procedure allows a strike out (at the request of a party or at the Tribunal’s own motion). And any employment lawyer with tribunal experience will tell you that it does happen. Often. 
  5. The tribunal system can’t just change its rules. They’re statutory. So if they’re to change, the Government will have to do it for them. And a wholesale reinterpretation of those rules – say, to strike out more cases – would be the subject of appeals (and probably successful ones). Judges don’t decide to change interpretation on a whim, and no sane person would want them to. 
  6. As for the suggestion about “inexperience”: see 1, above. The blind quote could be anyone, from an usher to someone in the MoJ selling a line or flying a kite. (In other words: pushing out a quote to see how it’s received. If it goes down well, the minister can double down on it later. If it doesn’t, you can walk away from it unscathed.) And given that this situation arises largely from political decisions made in the past 10 years, of course it’s a blind quote. It’s notable that Dominic Kennedy, the investigations editor whose byline the news piece carries, hasn’t done anything to interrogate these issues. 
  7. Now for the hit job on Natasha. As noted above, she’s been in this game for 28 years. She’s represented both sides, as almost any experienced employment barrister will have done, so the suggestion she “might appear more embedded on one side” is wrong. She’s as qualified as any newly-minted employment judge, whether fee-paid or salaried. A quick web search would have brought up her professional CV. But why bother, when as a salaried judge, Natasha can’t answer back? The fact that she wrote a book based on MumsNet postings is neither here nor there, unless it’s intended to give the impression of someone unserious. The whiff of sexism is inescapable.
  8. Much the same applies to others named. The fact that two of 59 “newly-appointed” judges have strong trade union connections is irrelevant; Dominic doesn’t seem to have scanned the list for close industry connections which, according to his approach, would suggest bias in favour of employers. I’m sure they’re there too. And as someone who appears before ETs on a regular basis, I don’t care. If a judge reaches a biased decision, we’ll appeal them; and the Employment Appeal Tribunal will eat them for lunch. But it’s really, really rare.

I wrote a lot of investigative pieces during my time as a reporter. This is how it usually works:

  • You get a whiff of a story. Sometimes from a source, sometimes from open documents, sometimes from events.
  • You pitch to your editor what you think the story’s going to end up being. Hopefully, they tell you to get on with it.
  • You do research. You talk to lots of people. You get very frustrated with a few blind alleys. You test your hypothesis.
  • Sometimes it checks out as you’d expected. Often, it changes in the process and you end up with a rather different story. 
  • You go back to your editor and explain where you are. Hopefully, they say: OK, changed story is still interesting. Go ahead and write it up. Sometimes they say: I don’t like the changed story. Spike it and do something else. Or sometimes – worst of all – they say: no, I wanted the original story. Write that one.
  • If that happens, you’ve got a choice. Either you push back; or you find ways of adapting your research to fit the original pitch.

This piece smells of pushing a line. It would be so easy to include the context about UNISON and tribunal fees, the truth about how judges are appointed, the reality that a barrister with three decades of ET experience is absolutely standard material for a role as an employment judge. 

My suspicion? That material might well have been in the early drafts. A decent reporter would have included them. But they made the story more nuanced, less impactful. So they probably got taken out in the editing process. So as to make for – as one former editor of mine used to put it – “a better top line”.

This hack job isn’t victimless. It smears the reputations of professionals who can’t talk back. It paints an inaccurate picture of a system which – and this is the bit the Times gets right – is genuinely in trouble. There aren’t enough judges. There isn’t enough tribunal space. Tribunal systems are archaic – one of the reasons so many cases got postponed for so long (from April to September very few final hearings took place; that’s a half-year lost) was that they’re still very paper-based, and the electronic systems wouldn’t support remote working for a long time. And that’s the result of the huge cuts which tribunal fees allowed governments to make, and the fact that they’ve never yet been properly reversed. 

The result, even before Covid, was frequent delays. Between September 2019 and March 2020 I had three multi-day cases pushed back as much as a year because judges weren’t available – sometimes on the day. That doesn’t just hurt claimants. It hurts employers too. You’ve had to take critical staff off the front line to sit around in a tribunal waiting room, and then they all have to go home? And you have to do it all over again? That doesn’t do either side any good. 

You can infer this from Dominic’s piece. Sort of. But it wouldn’t produce the “know-nothing judges in hearing free-for-all” headline the Times seemed to want. A better top line, wasn’t it?

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