In the 1970s, John Gouriet, a former officer in the British Army, took part in founding the National Association for Freedom (NAFF). Gouriet had attempted to persuade the then Home Secretary, Roy Jenkins, to offer an award of £50,000 for information leading to the conviction of IRA terrorists. When Jenkins declined, Ross McWhirter made the offer instead, only to fall victim to an IRA assassination himself. Gouriet and McWhirter’s twin brother Norris launched NAFF a week later. The right-wing pressure group intended to promote the values of enumerated in the Charter of Rights and Liberties which had been penned by the deceased McWhirter, placing strong weight on, inter alia, the needs of national security, private ownership, freedom of speech, rights to privacy, and taking a stance against trade unions. The group would pursue their aims in part through the use of legal action, following tactics which had previously been used by the McWhirter brothers. For instance, NAFF provided financial support for parents seeking to preserve grammar schools in Tameside in Secretary of State for Education and Science v Tameside Metropolitan Borough Council.
In Gouriet v Union of Post Office Workers, NAFF found some measure of success in the courts, albeit briefly. The Post Office Union had declared that it would boycott sending mail to South Africa due to apartheid. Gouriet decided to request that the Attorney General should bring criminal proceedings against the unions since such action would breach sections 58 and 68 of the Post Office Act 1953. The Attorney General declined to give consent for the “relator action”. Gouriet then brought an action in his own name and applied for an interim injunction, which was rejected on the grounds that the High Court had no jurisdiction. The Court of Appeal, however, granted the interim injunction and later declarations. Lord Denning went further and said that there should be a final injunction, although he was in the minority on that proposition. Ultimately, the potential for an interim injunction and the declarations were reversed on appeal to the House of Lords.
This, and the associated failure of another action, meant that NAFF faced costs of £90,857. Gouriet said at that time, “We are launching an appeal to try to meet these enormous costs”, adding that “Failure to do so will spell the end of NAFF and probably the end of any organised resistance to the advance of commune-socialism in Britain, as well as bankruptcy for me as the eventual unsuccessful plaintiff”. The £90,857 was shortly raised by NAFF members. This saga clearly had the effect of dissuading Gouriet from placing heavy reliance on these tactics in the future. In the following years, the use of legal methods to advance political views would no longer be as necessary to NAFF (later known as the Freedom Association) since Thatcher would take similar political positions as the Prime Minister.
Just as Gouriet had sought to use the courts to propagate his political views at a time when the then government had opposed them, so has Jolyon Maugham KC sought to use his equivalent of NAFF to bring about political change. Unlike Gouriet, Maugham is politically progressive, but the parallels regarding methods are nonetheless conspicuous.
Litigation is often a poor means by which to engage politically
Maugham is the founder of the Good Law Project (GLP), a not-for-profit company limited by guarantee which seeks to achieve progressive change through the law at a time when a government Maugham opposes is in power. Many of the GLP’s cases raise costs through crowdfunding, normally concerning issues related to the Conservative government, Brexit, the environment or trans rights — all pre-occupations of its founder. In his 2017 speech, “The Lawyer as the Political Actor”, Maugham described himself as a “cause lawyer”. There are four categories of case which he might bring, he said. First, there is litigation which changes the law; second, litigation which compels compliance with the law; third, litigation to know the law; and fourth, litigation which pushes issues up the political agenda. With an opposition that would not “hold the government to account”, and a fourth estate “weakened” and unwilling to do so, legal action would force the courts to provide “checks and balances” on the executive. Gouriet, in a sense, then, was a proto-Jolyon, frustrated with the current political direction of the country, using litigation to achieve political goals. He used law as “politics by other means”, as Lord Sumption has described it, adapting Clausewitz.
Yet, litigation is often a poor means by which to engage politically, especially in England and Wales. The courts are more restrained, and litigation cannot result in radical changes to government policy. One of the animating factors for Maugham’s legal activism had been the 2016 referendum result, where there was a 52 per cent majority in favour of leaving the European Union. Even the high-point of political cases in recent years, Miller II (where Jolyon played a background role) achieved little in terms of long-term success on this issue. Boris Johnson’s prorogation of Parliament was deemed to be unlawful by the UK Supreme Court, yet the Conservative Party eventually won a large 80 seat majority in the election that followed in December, later putting through a withdrawal agreement in January.
In cases where the GLP has been more directly involved, success has also been limited. During the Covid pandemic, Maugham became particularly exercised about the procurement process, and the process by which officials would be appointed by the government, alleging that there was cronyism and corruption involved. He concentrated much of his ire on Dido Harding and Kate Bingham and their connections to the Conservative Party — the former a Conservative peer and the latter married to the Conservative MP Jesse Norman. The crowdfund, which raised £388,635, declared that we lived in “chumocracy” and said that it was being challenged. Since it transpired that Bingham had played a pivotal role as the head of the UK’s vaccine taskforce and was eminently qualified for her (unremunerated) role, the GLP decided to drop the part of the case involving her. This was after Maugham had written a pompous article for the Guardian which said:
There is an England of my mind. And in it those who have made their fortunes offer their time and talents in service of the public good, modelling self-sacrifice and respect for good governance to ensure the nation thrives. But that England is no longer this England. Take the story of Kate Bingham [ … ]
In R (On the Application of the Good Law Project and the Runnymede Trust) v the Prime Minister and the Secretary of State for Health and Social Care, the High Court found that the GLP did not have standing to bring the case. It did not have “carte blanche” to bring a judicial review no matter what the circumstances. The Runnymede Trust, which was funded by the GLP, did have standing, but it succeeded on only one ground. It brought claims on the grounds of (1) indirect discrimination, (2) contravention of the public sector equality duty and (3) apparent bias. It was only with regards to the public sector equality duty that the Runnymede Trust was successful. This was a much more modest victory than had been promised when the crowdfund was initiated. There was a declaration of unlawfulness regarding process, but nothing substantive in respect of the cronyism claim. Indeed, the GLP was ordered to pay 80 per cent of the defendant’s costs. Maugham maintained on Twitter that the Good Law Project had lost its claim only at a “deeply technical level”.
This raises questions regarding the legitimacy of the current model of cause lawyering. There is often quite a chasm between the eye-catching claims of the GLP when bringing crowdfunds and the ultimate outcomes of litigation. In one claim, the GLP abandoned its first ground which argued that the government had made sham records and sham meetings so that it could defend judicial reviews, since the allegations could not be substantiated. In another, Chamberlain J accused the GLP of “consistently putting the case higher than was warranted”. In an article for the Modern Law Review, Sam Guy noted that with regards to “a donor base which is often politically motivated but which may lack consciousness of the administrative justice system, this risks a disillusioning disconnect between donors’ expectations and the soberingly technical reality of judicial review”. The occasions on which the GLP succeeds, such as in the Public First case (later overturned on appeal) which resulted in declarations, are often met by a chorus of its followers calling for ministers to be locked up, showing a signal misunderstanding of public law and its remedies. The declarations are, on the most part, inconsequential.
It is an abuse of the legal system to use courts as an instrument
The GLP has not avoided some unequivocal losses, either. Earlier this year, its claim was dismissed in Abingdon Health regarding government procurement in the Covid pandemic. Last week, the GLP experienced another loss, this time in the R (on the application of the Good Law Project) v the Prime Minister and Ors appeal. It had hoped to establish that the PM and others had acted unlawfully by using private communications when undertaking government business. The Court of Appeal determined that there was no breach of the Public Records Act; there was no breach of policies as could be enforced under judicial review; and a note, called the Dunn note, giving advice on when to use private communications, was not unlawful with regards to any inconsistencies with policies regarding the retention of government communications.
What exactly has the GLP achieved with regards to its wider political aims? Many of the cases do not meet the first three categories of cause lawyering as spelt out by Maugham in his speech, or at least they do not further political aims in any significant way. It is possible that the litigation which fails, or which modestly succeeds, could satisfy the last aim — namely, pushing issues up the political agenda. It is not the function of the courts to trigger a discussion about political issues, however. The courts are there to address legal questions on which the parties litigate. It is an abuse of the legal system to use courts as an instrument to make issues more salient by bringing claims which either fail or are successful only in respect of declarations of little immediate consequence. It is not even clear that the GLP’s cases have even had a significant impact with pushing issues up the political agenda outside of comment by those who already support the GLP.
Ultimately, the political process decides many of these issues. Matt Hancock was forced to resign not because of the GLP’s legal machinations against Covid procurement, but because of leaked footage, showing him apparently breaching lockdown rules. Boris Johnson left Downing Street after his cabinet and backbench MPs turned against him due to failings regarding Chris Pincher. The task of undertaking law reform through the courts is a complicated one, which requires careful thought about which cases to pursue. That process is not always likely to provoke urgent interest on social media, as Maugham’s angry pronouncements about Conservative ministers will whip up the excitement of his supporters. Chasing after headlines and threatening political opponents via the legal system is an awkward model, where long-term strategic success is often improbable. Since the most recent failures, the GLP, noting the “change in judicial mood”, may be dissuaded from taking the most prominent political cases in judicial review, and concentrate its efforts elsewhere. Although Maugham has been increasingly critical of Labour’s Keir Starmer, who looks likely on current polling to be the next PM, GLP litigation will likely seem less necessary to supporters if a left-wing government will be in power. The GLP’s strategy may well end up the same way as Gouriet’s.
Enjoying The Critic online? It's even better in print
Try five issues of Britain’s newest magazine for £10Subscribe