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The Court of Appeal judgment was profoundly illiberal, and the issues need scrutiny notwithstanding
Whatever cognitive and emotional biases were at play, true or apparent, materially significant or otherwise, let’s assume that there was no untoward process in the decision-making of the three Court of Appeal judges last week.
It is quite incredible that they were able to deliver such a detailed judgment within the space of 24 hours, some might say, but this is probably not surprising given the voluminous nature of the background documentation such as Iain McNicol’s witness statement (if he submitted one.)
Whatever is the real story behind the ‘entryist Trots’, there is absolute no proof that the vast majority wanted to vote for Jeremy Corbyn. For all we know, the #SavingLabour campaign has been a roaring success (so much so it is about to be succeeded by ‘Labour tomorrow’). Also, we can of course safely assume that 130,000 people were so disgusted by Jeremy Corbyn MP’s lack of leadership on the #EURef that they wished to sign up to Labour to give rid of him asap. Not.
The alarms about ‘entryist Trots’ are a matter of conjecture and speculation, so much so no realistic legal judgment would go into great lengths about the need to ban new members from voting. But the Court of Appeal delivered a voluminous judgment which made no reference to how the electronic contract on the website might have been concluded.
The judgment gets into an acceptable review of the jurisprudence on the completeness of a contract, on whether some terms are more important than others. This is to deny that there are certain issues which happen outside of the explicit terms of a contract – i.e. the right of the employee to resign for downright offensive behaviour by his employer, an implied term in the employment contract.
But amazingly the jurisprudence employed by the Court of Appeal makes no reference at all to how the wider way in which people are attracted to the website and might conclude their membership.
There is for example this notice, and note the wording.
The wording says ‘you’ll be’ not ‘you might be’ or ‘you could be’.
Let’s assume that joining Labour is exactly like making a contract, at best a spurious assumption, but one which has been supported by reference to cases such as Choudhury and Ors v Treisman. The Court of Appeal judges appear to have somewhat lost sight of why the claimants were there at all – they thought that through membership they could exercise a vote.
If the freeze date were of such crucial importance, it should have been given such prominence as you’d expect for revocation of an offer for a contract (i.e. same size and letter etc.) – but the fundamental principle of contract law will still hold – caveat emptor. But this for a reasonable buyer to do a reasonable due diligence – cf buying a lettuce on the Sainsburys on-line grocery website. I don’t think it’s possible for a reasonable buyer in this context to be able to inspect every nook and cranny of the Labour rule book nor the surrounding national legislation on elections and referendums.
Justice might for one or four claimants might not matter as such, but if you truly believe in the rule of law, you’ll hold that everyone is equal in front of the law. But it is clearly a matter of natural justice that the Labour NEC can’t take the monies off 130,000 at what at best can be best called dubious circumstances. Likewise, it was clearly not natural justice for some in the NEC to deny the wish for Jeremy Corbyn MP to defend his own position as leader. It is well known that many people on the elections committee of NEC are extremely hostile, sometimes to his face or in written form, to Jeremy Corbyn.
The Court of Appeal judgment was profoundly illiberal. The English law for the time being complies with the European doctrine of proportionality, in that its rules are deemed necessary and proportionate by the legislature. Whatever the views about the setting of the ‘freeze date’, including ‘it’s always been done that way’, the fashion of setting a freeze date retroactively when members of Labour had been so vehemently encouraged to sign up is an extemely dangerous one. As an example, the English law is extremely reluctant to produce retroactive law, but it has been known to happen, for example the War Damages Act. This decision unfortunately does give an impression in that the NEC is indeed above the common law – in that its rule book can make up rules at the drop of the hat for any spurious reason. This autonomy is vehemently not called irrational by the Court of Appeal. Methinks the lady protesteth too much?
But on the face value, 130,000 people have concluded a contract, their monies debited, and now they are denied a chance of a vote in a democratic process – and they want their money back. It is a long running thread in English law that the law looks at the substance not the form, which is why it is baffling why the Court of Appeal seem to have completely lost sight of why the claimants felt so strongly enough to make a claim at all.
The Supreme Court will certainly need to have a careful look at how it could have been the Court of Appeal lost its way so triumphantly, with consideration of the formation of the contract in this digital age (e-commerce, for example) and the human rights involved in a democratic right to vote. LJ Laws has of course famously mooted whether human rights law should involve itself in issues of society and moral issues, but we are where are. The Rt Hon Prof Robin Jacob who famously sat as one of the experts in intellectual property for the Court of Appeal was very good at joining up different strands, unlike the three CoA judges last week I feel. Jacob before becoming a distinguished lawyer studied natural sciences at Cambridge.
Lord Falconer claims it was a ‘good judgment’ and emphasises that it was not the Labour NEC who brought the claim. But he is being utterly disingenuous as it was the Labour NEC’s decision to use members’ money to appeal the High Court judgment, a decision which even Frank Field MP found utterly bizarre on BBC Any Questions this friday.
The liberal English press seem curiously silent on the muzzling of liberal principles.
Take for example Thomas Paine (1795):
“The true and only true basis of representative government is equality of rights. Every man has a right to one vote, and no more in the choice of representatives. The rich have no more right to exclude the poor from the right of voting, or of electing and being elected, than the poor have to exclude the rich; and wherever it is attempted, or proposed, on either side, it is a question of force and not of right. Who is he that would exclude another? That other has a right to exclude him.”
It is a matter of conjecture from Alan Ryan, that JS Mill did not think of contract and property rights as being part of freedom.
The right to vote is fundamental: as stated clearly on the Liberty website,
“The right to free elections is crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law.
By agreeing to Article 3 of the First Protocol, the UK has undertaken to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.
… Conditions may be set on the right to vote such as minimum age requirements and, in some circumstances, residency. But such restrictions cannot impair the very essence of the right to vote. In particular, disenfranchisement is a very serious matter and it will require a discernible and sufficient link between the sanction of disenfranchising someone and the conduct and circumstances of the person being disenfranchised. A blanket, automatic restriction that applies regardless of individual circumstances will be in breach of the right to vote.”
And the late great Tony Benn repeatedly emphasised how the vote was of much more influence than money.
These five questions seem to me to be particularly pertinent, and worth asking for the Labour #NEC and much of the currently motley crue that is that is the parliamentary Labour Party.
'One Nation' – but it may not be 'one direction' for Labour
Bear in mind when reading this I am a nobody – I am not a MP, councillor, journo, wonk, but I am a member! You’d be forgiven for thinking that this speech was only about “one nation”, but Ed first utters the first of his 46 “one nations” 20 minutes in. This was, by far, the best Labour leader’s speech to, and it was only my third conference in total. Ed Miliband spoke passionately, articulately, and convincingly, without notes, for over an hour, and would have been genuinely inspiring for many. If, on the other hand, you were a Scottish voter looking for Scottish independence, you might have been desperately hoping that Ed Miliband would announce a policy for Scottish independence. It is probably at least accurate to form the judgment that Ed Miliband has converted himself from the “Not never” to the “Yeah but” candidate, as proposed by Matthew Taylor today (the CEO of the RSA). Ed Miliband is clearly much better without an autocue, and his delivery was witty, engaging, vibrant and interesting. The jokes were good too. People who saw the Conference were definitely buzzing afterwards, and I was sat around the corner with some of the ‘Labour Left’ contingent, awaiting a fringe session on ethics in media and in business.
It has become known as the ‘One Nation’ speech, because of the use of the phrase ‘one nation’ forty six times. The speech managed to pull off Ed’s pride in the NHS hospital in which he was born, and the Haverstock Hill Comprehensive School in which he was educated prior to Oxford. And yet the speech did not have the jingoism that Disraeli was in fact known for, and Frank Dobson indeed noted that it was any appropriate that the Left should appropriate back a national sense of pride and identity. A clear message, which Ed convincingly explained, that politics was not simply a well-paid job for Ed, but a genuine life motivation, but a “faith” “to leave the world better compared to how we found it”, and “not to shrug our shoulders against injustice”, and “overcome any odds in coming together”. These are not particularly socialist or social democratic ideals, although the ‘coming together’ may be symptomatic of the solidarity inherent in solidarity, or the action against injustice as a social democratic ideal. Whatever the exact etymology of Ed’s beliefs, Miliband is more concerned about the millions of members of the public who have become disconnected with politics, and it happens that the political process is a central third strand of the extensive policy review currently in progress through 37 focus groups being led by Jon Cruddas MP.
Ed discusses individuals ‘brimming with hope’, such as individuals who have sent off hundreds of CVs to potential employers. It is interesting especially how Ed’s “aspiration” is not of the same tone as the Thatcherite individualistic definition, but rather one combined with a notion of insecurity not exclusive to the middle-class. The feeling that people are “at the mercy of forces beyond their control” is certainly one will chime with many of potential voters. His focus on prices in utility bills (and the profits of privatised utilities) is an interesting one, as these represent genuine concerns of Daily Express readers on a regular basis apparently. Interestingly, Ed Miliband stops short of proposing renationalising of the utilities, or introducing a windfall tax for the utilities, which would have been a radical solution (and which indeed could have been shoehorned, just, within the framework of ‘pre-distribution’). This brings Miliband to the notion that people at the very top are still doing well in Tory Britain, and hence his faith of “One Nation”. The line about Cameron writing himself a cheque as a tax-cut is rather misleading, especially given the blurring of the factual difference in tax terms between income and wealth.
In fairness, a sense of shared destiny has been evoked previously by Prof Michael Sandel in his philosophy of ‘equality of opportunity’ for the common good, and Miliband himself has often spoke much about how the economy is a ‘one nation’ economy, not private vs public, north vs south, millionaires vs non-millionaires, or rich vs poor. ‘We need banks that serves the country, not a country which serves the banks” is indeed a convincing slogan, but Miliband stops short of arguing for intensive regulation of the banking industry in the speech (although he threatens it by offering first an opportunity for self-regulation). A problem, which came up as a recurrent theme in this year’s fringe meetings of the Fabians and Labour Left, is that an optional ‘responsible capitalism’ might not be implementable, but that the State might have to legislate for transparent details to be published about sustainability and ethical practices of the banks, if banks decided not to publish such data voluntarily to secure competitive advantage through a strategy of ‘differentiation’. This is a recurrent theme in Miliband’s speeches, and critics have often remarked how it seems rather disingenious that Miliband criticises a lack of ‘one nation’ while waging some sort of class war. Ed Miliband does not feel that the Conservatives can be a ‘one-nation party’, but is less than clear about his reasons for doing so. The economic narrative initially is clear; that the raison d’être, to cut borrowing, has failed, the economy is not growing, fewer people are in work, and borrowing is going up. One of Labour’s criticisms regarding economic competence is of course that Labour recklessly borrows, but Miliband argues that borrowing is going up anyway. However, as usual, the details from Labour as to what it exactly it will commit to in terms of austerity cuts – and critically where – is ambiguous, and it is particularly confusing that Ed Miliband, while appearing to support austerity in the Conference Hall, is simultaneously willing to go on an anti-austerity march soon.
There are noteable absences in themes, such as the green economy or Europe, and even some burning issues are not tackled at all, such as disability. Ed Miliband concludes that ‘one nation’ is a way of making difficult decisions, including ‘compassion and support for those who cannot work, particularly the disabled citizens of our country’. Miliband has thus far avoided the confusion, in much the same way that Byrne has, that the disability living allowance is not an employment benefit, and this myth must be busted by Miliband soon. Disability campaigners therefore, fundamentally, have every right to be skeptical of the ‘one nation’ narrative, having been sidelined as ‘benefit scrounging scum’ (by some) for far too long. The incompetence narrative is convincing, particularly on the eve of the disaster of the West Country Train fiasco: “”Have you ever seen a more incompetent, hopeless, out-of-touch, U-turning, pledge-breaking, make-it-up-as-you-go-along, back-of-the-envelope, miserable shower?”
The clever aspect about ‘One Nation’ is that it appears to be quite a politically framed left-agenda, but sugarcoated in centrist packaging. For example, “there will be tough settlements for the public sector” might send alarm bells ringing for the Unions, but introducing a 50p tax rate for millionaires might offer some balance. Notwithstanding, Maurice Glasman has been eager to propose how collective workers may be beneficiaries of the new ‘One Nation’ project. The usual criticism is that Labour never introduced a 50p tax rate until the very end, and even then it was finally implemented after the Conservatives had come into power. So, if “those with the broadest shoulders take the greatest burden”, before Miliband then criticises Murdoch explicitly, is this genuinely the talk of “one nation”? There are obvious possible contradictions within the text: for example Scottish members cheering on “Team GB” in the Olympics, whereas one of the greatest triumphs of New Labour had been cited as devolution. There are not only contradictions within the text of the speech, but of Labour with its past. There may be a sense that it is better that ‘the sinner does finally repenteth’, and indeed the move towards youth apprenticeships (and youth employment) may be a practical solution as the antithesis to New Labour wishing to send more and more people to University. It is indeed promising that Ed Miliband even proposes that contracts will only be awarded to those private sector companies which implement apprenticeships, but it is somewhat surprising that Miliband does not state explicitly ‘the minimum wage’ as part of the solution for the dodgy employment activities of some multi-national companies.
It is further uncertain whether Ed Miliband’s description of the core values of the NHS as “competition, care and collaboration” was a Freudian slip; when I later attended the Andy Burnham interview with Caroline Crampton of the New Statesman, people I spoke to in the audience queried the inclusion of the word “competition”. It is likely that Miliband did not in fact mean “competition” at all, as he then graphically explains why competition had failed in the privatised utility companies. Indeed, Conference started off with the report that Labour would not be able to reverse the Health and Social Care Act, but later statements from Andy Burnham, Ed Miliband and Jamie Reed later confirmed that the Health and Social Care Act would be repealed, if Labour came into power. Labour still appears to endorse (in some form) GP commissioning and NHS Foundation Trusts, and was indeed responsible for introducing them, but Andy Burnham’s promise to change the narrative, in ‘getting rid of the market’, is still not entirely convincing with existing structures still in place in 2015. Whilst it is true that the Conservatives went much further and faster than the Labour administration had, many feel that the ‘purchaser-provider’ split is still very much at the heart of the problems in the NHS. A truly socialist NHS might get rid of this split? A very good thing that Ed Miliband did to highlight the lack of inclusion was to state that the medical Royal Colleges had not been involved in the dialogue over the NHS reforms, which definitely supports his “one nation” narrative.
Labour has a lot of time on its side, and we do not know how much further the economy will regress between now and then. This certainly gives Jon Cruddas and his colleagues enough time to work out details about how Labour can build on the ‘one nation theme’. Miliband has indeed experienced a ‘bounce’ in the polls, and previous criticisms of Ed’s leadership have for now been muted. The speech had a clear structure and a clear theme, and was genuinely extremely well received by many Labour members; but the danger is that Labour is preaching to the converted, and overestimating its popularity. However, the distinct possibility has now emerged that David Cameron might be in fact be an ‘inglorious leader’ of a one-term government, and Ed Miliband and his shadow cabinet have now suddenly found themselves “back in the race”. This can only be a good thing for democracy.
The problem is brilliantly illustrated by Gary Baker ((c) of Gary Baker therefore) in Tribune in this incredible cartoon!
