October 10th is World Mental Health day:
In July 2013, the, then, Lord Chancellor (Chris Grayling), implemented the Coalition Government’s policy which sought, first amongst other policy reasons, to limit vexatious claims, made by disgruntled employees, in employment tribunals.
It appeared, from one perspective at least, that employment rights should be diluted to a degree in the interests of smoother employment tribunal administration.
Viewed over recent decades, the changing regulation of disputes through the employment tribunal system (and earlier industrial tribunals) can be considered like the strata in a geological bore hole revealing, to some extent, the dominant political and economic forces present over time.
This might not always coincide exactly with an election that brings a change of political party in 10 Downing Street as the issue seems to arise most often amidst legislative spring-cleaning. Mr Blair’s government, elected in 1998, for example, waiting until 2004 to rearrange the regulatory furniture in this area – albeit still within the boundaries of the Employment Rights Act 1996.
Moreover changes may also be tied to a particular ideological flavour within party politics. Steering a centrist course, New Labour’s regulatory ‘feng shui’ itself envisaged the introduction of fees in an effort to control the burgeoning numbers of claims before employment tribunals. At around £100 the New Labour fees were significantly less than those just contemplated in the UK Supreme Court at the behest of trade union Unison.
Employment relationships are, perhaps, not quite sufficiently urgent a matter to effect change immediately yet are always consciously weighing on the tidy ideology of the incumbent political mind.
Looking back at the legislative movements in this clearly politicised socio-economic field can certainly help to identify which of the two main party political powers have been dominant at any given time in Westminster. (The matter is a reserved one).
A period where employment tribunal regulation tilts in favour of employers tends to arise at the hands of a Conservative administration. A swing more in favour of the employee usually reflects a Labour government at the tiller.
In March 2015 The Guardian published a letter signed by a significant number of lawyers regarding Chris Grayling’s decision:
“The ... fees are a significant barrier to access to justice and are preventing employees from being able to complain about contraventions of their employment rights.
We do not think that the current level of fees can be justified by the suggestion – repeatedly made by the media, politicians and others – that prior to July 2013 a significant percentage of employment tribunal claims were vexatious.
The introduction of fees has had no discernible impact on the outcome of cases. This must mean that meritorious claims are not being pursued because of the fees regime.
The letter urges the government to carry out a review of the fee levels, and urgently. It is signed by 40 QCs and 400 barristers specialising in employment law. Among prominent lawyers supporting the letter are Gavin Millar QC, Helen Mountfield QC and Dinah Rose QC.”
The role of the UK Supreme Court in this context, i.e. with regard to the balance of favour as between employer and employee affected by the regulation of the employment tribunal - the dispute forum that operates to resolve workplace concerns, is to ensure that there is no excessive imbalance effected within the regulation of employment tribunals sufficient to impact upon wider constitutional matters.
In doing so the Court has in mind the inherent inequality in bargaining position as between the parties.
“Relationships between employers and employees are generally characterised by an imbalance of economic power. Recognising the vulnerability of employees to exploitation, discrimination, and other undesirable practices, and the social problems which can result, Parliament has long intervened in those relationships so as to confer statutory rights on employees, rather than leaving their rights to be determined by freedom of contract” (Lord Reed, at para. 6).
Today the UK Supreme Court has held that the Government’s Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013, SI 2013/189 i.e. the introduction of fees, for those seeking to challenge employment issues, represented, just as the lawyers’ letter to The Guardian stated, a barrier to justice. That barrier arising not just within the context of EU law but also under the common law.
The UK Supreme Court has detected an excessive swing to starboard likely to cause bow waves unsettling the wider channel of justice.
And possibly unsettling the wider channel of commerce? Some inevitable, jet largely ignored, consequences of commercial motivation were not explicit with the judgment yet are certainly a possible corollary. The BBC considers that aspect in an interesting programme ‘Decoding the News: Shareholder Value’ (First aired Tuesday 25th July, 2017):
The summary of today’s judgment (the numbers in square brackets indicate the paragraphs of the authoritative judgment) notes:
“The Fees Order is unlawful under both domestic and EU law because it has the effect of preventing access to justice. Since it had that effect as soon as it was made, it was therefore unlawful and must be quashed.
The constitutional right of access to the courts is inherent in the rule of law: it is needed to ensure that the laws created by Parliament and the courts are applied and enforced. Tribunals are more than merely the providers of a service which is only of value to those who bring claims before them [65-85]. As a matter of domestic law, the Fees Order is unlawful if there is a real risk that persons will effectively be prevented from having access to justice, or if the degree of intrusion into access to justice is greater than is justified by the purposes of the Fees Order [86-89].”
Unison’s challenge to the legitimacy of the Fees Order of 2013 was rendered more easily surmountable because the change was effected using subordinate legislation.
The apparent lack of any reasoned assessment, within the Government’s calculations, as to the amount of fees proportionate in light of the mischief of vexatious employment tribunal claims seems to have left the Justices distinctly unimpressed:
‘Counsel for the Lord Chancellor were unable to explain how any of the fees had been arrived at.’
Lord Reed, at para. 18, R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent)  UKSC 51
Might New Labour’s proposed fee amount of closer to £100 have avoided the judicial assessment in this instance that the level of fees (reaching towards thousands of pounds) was a barrier to justice by being more proportionate?
Whilst the Court viewed that the employment tribunal was, ‘more than merely the providers of a service’, it cannot be ignored that the system is, nonetheless, still a service in some essential aspects of its role.
Congratulations to Peggy Styles, aged 86, as it happens, who this week has collected her doctoral qualification in education after study with Bristol University.
Picture from Bristol University Twitter:
The story on MSN web pages:
The UK Parliament website indicates that the European Union Committee publishes its report on Brexit and devolution today:
Direct link to the European Union Committee Brexit: devolution. 4th Report of Session 2017-19 - published 19 July 2017 - HL Paper 9:
The master was a fat, healthy man; but he turned very pale. He gazed in stupefied astonishment on the small rebel for some seconds, and then clung for support to the copper…
'For MORE!' said Mr. Limbkins. 'Compose yourself, Bumble, and answer me distinctly. Do I understand that he asked for more, after he had eaten the supper allotted by the dietary?'
There is an interesting debate this evening in the House of Commons as a consequence of the current parliamentary session being scheduled to last longer than usual.
The Labour MP for Walsall South, Valerie Vaz, has tabled a motion to consider some difficulties resulting from the Government’s decision to hold a two-year parliamentary session.
Usually a parliamentary session only lasts one year.
Will one year’s worth of Opposition days now have to stretch across the two-year session?
Will the usual 13 private Members’ bills be doubled in this extended session?
The matter brings to mind a remark by Bilbo Baggins in J.R.R. Tolkien’s Fellowship of the Ring:
“I feel thin, sort of stretched, like butter scraped over too much bread.”
Hopefully they will be acquitted.
Might there be some constitutional catharsis in the political rollercoaster that has manifested in this interesting General Election result?
If there is, which political actor(s) might it touch? The electorate, the politician, both?
In 1967 Sir Lawrence Olivier discussed the cathartic role of Greek tragedy:
“The point of Greek tragedy, which is the original, was to bring huge crowds of people into a house and purify their souls by a catharsis. And I suppose you could call catharsis a purge of the soul. And that was the point of it. And that made them better. It was rather like going through acts of contrition in more modern religion. A confession and penance and act of contrition and absolution. That, in a way, was the same idea. You suffered a tremendous sense of remorse. Now, what can improve on that situation is that if, for instance, in Othello, there can be a time, and there is a time in the play, when I'm perfectly sure that it's right that the audience should be on Iago's side and want him to hurt Othello. This stupid gentleman, this idiot, this brutal sort of savage, go on, thrash him. Thrash him, go on, thrash him. And then it wouldn't matter if you introduced a kind of absurdity into this character to increase the audience's relish at him being tormented. Now then, that's all right provided you're not too late to make them sorry. And then if you do make them very, very sorry, then that is the catharsis we're after.”
Olivier’s interview on catharsis and drama:
It is probably overly fanciful to equate Olivier’s account of Othello with that supranational constitutional actor recently at the heart of popular political drama.
Perhaps that supranational drama has contributed, however, to portrayals on our domestic stage?
“[B]ecause the multitude naturally is not one, but many; they cannot be understood for one; but many authors.” (Hobbes, Leviathan, 1651, Chapter 16, para. 14).
If it were not for the Athenian practice of counting votes with pebbles (hence ‘psephology’ the study of voting patterns deriving from the Greek for pebble) it might be possible, with some imagination, to view the hundreds of thousands of Xs cast on ballot papers across the UK as comprising something akin to a great and dramatic script.
Curiously there appears to be some visual proximity between Labour’s 2017 manifesto ‘For the Many’ and (the frontispiece at least) of Thomas Hobbes’ Leviathan (whether Hobbes presentation copy or the engraving). The ‘many’ are represented in a distinctly similar manner.
The 'many' pictured on both front covers (detail in lower image).
Might this image capture the many authors of a political drama offering constitutional catharsis?
BBC Radio 4 In Our Time on Thomas Hobbes:
If the exit poll prediction of a hung parliament (with no one party having an overall majority by reaching the 326 Westminster seats required for a bare working majority) is correct will there be time for an organised coalition government to be composed in time for the anticipated beginning of Brexit negotiations on 19th or 20th June?
Forecasts projecting early regional declarations to a national picture do suggest a working majority may yet be possible for the Conservative party but there are so many variables (not least fuelled by a seemingly high turnout) that the governance of the UK may yet be hanging in the balance.
If the Conservative party majority is not strengthened as anticipated will that impact on the UK's negotiating position with the EU? Probably not vis-à-vis the EU though the internal party dynamic will likely be of real relevance.
The 'others' - Independents, Plaid Cymru, Social Democratic and Labour Party, Ulster Unionist party, Green party and UKIP - may be able to wield significant leverage depending on their own presence in Westminster when the dust settles.
Might there be scope for a 'progressive alliance'/'coalition of chaos' (the appropriate label depending on your perspective)?
Curiously, the Green party vote is not reflecting the recent picture in some local authority voting patterns in early declarations in NE England and Swindon North.
A very interesting picture is developing.
It seems that the Union Flag fell from the walls of the Eurovision Song Contest venue in a portent seeming to reflect political separation.
Some omens do have constitutional significance attributed to them.
During the funeral procession of King George V, on 28th January 1936, the Maltese Cross fell from the Imperial State Crown as the cortege passed New Palace Yard on its way to Windsor and rolled down the street into the gutter. This struck some as an ill-omen that subsequently manifested in the abdication of Edward VIII on 10th December 1936.
Equally, flags are synonymous with signals and Royal Navy vessels signal distress by turning the ensign upside down.
In 1863 HMS Orpheus, a sleek, three-masted though engined, warship of teak and mahogany foundered on a sand bank off the New Zealand coast after following an outdated chart.
With a defective telescope the coastal signal station was unable to discern the upturned ensign on HMS Orpheus signalling distress and the delay resulted, tragically, in the loss of many souls as heavy seas broke Orpheus asunder.
HMS Orpheus by Richard Brydges Beechey (1863) from https://en.wikipedia.org/wiki/HMS_Orpheus_(1860)
Europe Day on May 6th marks the anniversary of the ‘Schuman Declaration’, given in Paris on that day in 1950, with the EU institutions opening their doors to the public.
Five years ago, to the day, next Friday, another spectacular facet of European musical culture was in evidence at the Placa de Sant Roc in Sabadell, Catalonia, (a contender for the location of the Sirenum scopuli?):
Passing the Sirenum scopuli - 'Odysseus bound'.
Giving his State of the Union address in Florence on May 5th, the President of the EU Commission, Jean-Claude Juncker, said that the English language (no doubt measuring his comment in light of the UK's secession from the EU) was "losing its importance".
Not so, it seems, in the eyes of the trio of Ukranian presenters hosting tonight's Eurovision Song Contest.
Indeed it seems the early contestants are also performing in English.
It will be interesting to see if the Brexit decision will have any bearing on the position of the UK's entry in a competition where geo-political affinity and messages of solidarity and concern can be aired with some modest impact.
Twenty years, says narrator Graham Norton, since the UK last won.
"Together we'll dance through the storm" ended the lyrics to the UK's (rather good) entry - with quite a cheer throughout the crowd.
Might a vote of post-Brexit solidarity be on the cards to confound recent UK Eurovision results on this occasion?
Banksy has apparently been busy with a blue flag over a white wall in Dover:
One of the stars being 'removed'.
Picture from The Guardian online:
Today (Monday) marks 310 years since the Acts of Union came into effect. That anniversary spotted, curiously, in today's (1st May) The Times 'Weather Eye' by Paul Simons.
It seems that the weather in the 1690s was 'horrendously cold, and Scotland was hit particularly hard.'
There had been a 'disastrous downturn in the climate'.
'The Cairngorms were permanently covered in snow, the seas were so cold that cod couldn't survive, and Eskimos even reached Aberdeen in kayaks, one of which is now on display in the University of Aberdeen Museum.' (Obviously the Eskimos had not encountered anybody with flat feet before embarking - more on that in a related post later).
'The staple crop of oats failed and people were reduced to eating nettles and grass... small wonder that this period was marked by trials of witches, who were blamed for the atrocious weather.'
Paul Simons' very interesting article concludes:
In one final act of desperation, the Scots tried to set up a colony in the Darien jungle of Panama - it was a total disaster that bankrupted the Scottish economy, and the only salvation was the Act of Union with England.'
I have sometimes wondered if Sir Arthur Conan Doyle set his 'Lost World' on the same Darien Isthmus partly to reflect his personal/political leanings. Having twice run for Parliament in the early 1900s (in Edinburgh and again in the Borders) Conan Doyle's Unionist Party sympathies may have led him to consider Scotland's failed Darien efforts to be illustrative of a position less successful than that which benefitted from Union with Scotland's southern neighbour whose more successful East India Company venture the Darien scheme was never able to match.
The ceremonial end of the 56th Parliament is currently just getting underway with the Prorogation being sparked by Commissioners acting on behalf of Her Majesty and a spattering of Norman French (different phrases depending on the nature of the bills) to signal Royal Assent for the bills completed in the (unexpected) 'wash up' period that seeks hastily to complete the list of pressing legislative chores.
Chatter amongst the narrators has just turned (in humour only) to whether or not the Norman French might be replaced with an Anglo Saxon alternative in light of Brexit.
On the anniversary of the Treaty of Paris a surprise announcement from PM Theresa May;
The decision does seem difficult to reconcile with earlier calls from the PM for focus to be on negotiations and constitutional calm a requisite for focus.
The post-Brexit dynamics might make for quite unprecedented shifts in parliamentary seats particularly amongst the parties situated on the 'Remain' side of the debate over the EU Referendum.
Not so these eminent commentators:
A number of commentators have queried whether the ‘Great Repeal Bill’ - which will seek to cover the modesty of domestic law as the tide of European Union law ebbs at the conclusion of the TEU Article 50 process – is an appropriate short title given that the immediate purpose is continuity rather than repeal.
The Thames tide ebbs
In HP Bulmer ltd.& another v. J Bollinger SA & others  2 All ER 1226, Lord Denning said: “[W]hen we come to matters with a European element, the treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back. Parliament has decreed that the treaty is henceforward to be part of our law. It is equal in force to any statute. ”
Even beyond a similarity in short titles, the Great Repeal Bill has further echo of the Great Reform Act 1832 (properly styled the Representation of the People Act 1832) in the family ties between two formidable parliamentarians involved in each: John Bright MP and Bill Cash MP. Both would point to the promotion of democratic representation lying at the heart of their formidable respective lobbying.
But with concerns over the accuracy of information provided by both sides of the EU referendum debate perhaps the ‘Misrepresentation of the People Act’ might be a suitable short title.
The Great Repeal Bill considered:
The Reform Act 1832:
A much more artistic representation of the people in the ebb and flow of the tide:
Having just recently (January 2017) been appointed the UK’s Permanent Representative to the European Union, Tim Barrow will possibly have the job of despatching the notice informing European Council President Donald Tusk (himself just re-elected in early March for a second term of office) on Wednesday 29th March 2017 of the UK’s formal intention to secede from the European Union.
In the era of Dickens’ works the Dover Mail would labour up Shooter’s Hill.
(Image from Project Guttenburg)
The ambassadorial envoy of today is unlikely to be halted by the muddied rider that pursued the coach in Dickens’ tale. (He will probably speed through the Channel Tunnel).
But might the ‘blazing strange message’ - ‘recalled to life’ - ever be uttered in the context of this crucial despatch from Downing Street?
Paragraph five of Article 50 provides: ‘5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.’
Perhaps Charles Dickens' Tale of Two Cities has the answer:
“Tom!” softly over the coach roof.
“Did you hear the message?”
“I did, Joe.”
“What did you make of it, Tom?”
“Nothing at all, Joe.”
“That’s a coincidence, too,” the guard mused, “for I made the same of it myself.”
The EU (Notification of Withdrawal) Bill has now completed its journey through the Houses of Parliament. Royal Assent is scheduled for tomorrow – 16th March.
Today - the 15th March – is the Ides of March – Julius Caesar was assassinated on the Ides of March.
The private secretary to the Emperor Hadrian, the scholar Suetonius, described the infamous events on the Ides of March as, “a test of civilisation”.
Fortunately, by the time the EU Notification of Withdrawal Bill receives the Royal Assent tomorrow, the Ides of March will have come and gone.
Marc Antony: “I come to bury Caesar, not to praise him” (William Shakespeare, Julius Caesar Act 3, Scene 2)
Substitute ‘Guy Verhofstadt’ for ‘Italy’ and ‘the Prime Minister’ for ‘England’ in an extract from a recent, keenly-observed and well-researched, post-match report of the (infamous?) England v Italy rugby match - which saw Italy adopt an unanticipated and unsettling strategy - and you can almost discern the same jaw-dropping tactical shock in the EU MEP’s ‘left-field’ approach - proposing continued EU citizenship for UK nationals; almost offering a post-Brexit bridge across the Channel - as that which temporarily baffled England at Twickenham in their 2017 six-nations rugby contest against Italy at the end of February.
First here is Guy Verhofstadt’s unexpectedly conciliatory note today, from BBC online news pages reporting the Belgian politician’s remarks:
“Mr Verhofstadt, who leads the liberal group of MEPs in the European Parliament, told the BBC that the [EU citizenship] matter had to be prioritised and "cannot be part of the political games" that have taken place over the last few months… Mr Verhofstadt said the situation "is a crisis for the EU". "The fact that a large country like Britain is leaving the EU...? It's shown a crisis in the European Union - it's a disaster. That Britain goes out of the EU is a tragedy, a disaster, a catastrophe - you name it."”
Now the substituted match report: “[Verhofstadt] did much more than compete... [he] tried something different… there was no humiliation at the hands of [the Prime Minister] and there was nothing that [Verhofstadt] did that demeaned… in the slightest, no matter what anybody else might think. [Verhofstadt] held up a mirror to the modern-day game, the endless torrent of breakdowns, and… showed where it needs to improve… Above all, [Verhofstadt] showed that glorious uncertainty is such a joy in this mechanical era. Now that is not a bad afternoon's work.”
Associated Press noted that Italy’s rugby tactics had ‘angered’ England: “It was smart and innovative from Italy coach Conor O'Shea - and it bewildered England so much that some of its players asked the referee how they could combat it.”
Mr Verhofstadt’s conciliatory tone, that so seemed to baffle the prepared intransigence of the UK Government, was echoed by another EU notable, European Commission President Jean-Claude Juncker, who has said today that he hopes that the UK will rejoin the European Union at some point in future.
Has the EU taken a leaf out of Conor O'Shea ‘book of tricks’?
Perhaps, but perhaps not. Perhaps it might be possible to look at the Italian’s rugby tactics not so much as a ‘trick’ but as an innovative approach. That is what Stephen Jones thought and I think he might well be right. Might these EU note worthies actually be genuine in their efforts to reconcile and compromise?
Not likely; according to Stephanie Flanders (J.P Morgan’s chief market strategist for Britain and Europe) speaking on BBC Radio 4’s Any Questions tonight. The former BBC economics editor is certain that there can be no likelihood that the EU will give something away for nothing.
And the game the EU is playing is just not rugby for Boris Johnson (again seeming to be Sir William Stanley reincarnate) who seems set against compromise and ever-determined to be on the ‘winning’ side: “I think we have illustrious precedent in this matter, and you will doubtless recall the 1984 Fontainebleau Summit in which Mrs Thatcher said she wanted her money back, and I think that is exactly what we will get," he [Sir William – sorry Boris] told BBC political editor Laura Kuenssberg in BBC Two's Brexit: Britain's Biggest Deal.”
It is interesting, therefore, to find an excellent Welsh source of Rugby comment use the same words as Guy Verhofstadt - ‘catastrophe’ and ‘disaster’ – in the context of England’s unexpected departure from the Rugby World Cup in October 2015 and consider... was that 2015 rugby exit a precursor of Brexit?
“When the word "catastrophe" starts being applied to the result of a game of rugby union a sense of proportion is clearly required. Yes, England are out of the World Cup but life goes on, clocks cannot be rewound and the competition proceeds without them. English rugby may be looking into a yawning sink hole of self-inflicted horror but this is still sport, not war, famine or death… As the former All Blacks forward Craig Newby tweeted in the early hours, England advanced further when they were jumping into harbours and drinking like fish… England's exit from the Rugby World Cup is a disaster for business - and could see a £3.5billion loss to the country's economy, experts have warned.”
If the UK can show the same subsequent form post-Brexit as the English rugby team - currently looking to equal New Zealand's All Black’s world record of 18 straight Test victories, then all will surely be well for the UK.
Yet can anybody emerge from a process of attrition a winner?
Look at what happened to Sir William Stanley.
To quote (albeit shamefully out of context) the unsurpassable and inestimable Scots rugby commentator Bill McLaren:
“The All Blacks that day looked like great prophets of doom.”
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