When hard cases make Good Law

How did a specialist tax lawyer end up heading an organisation dedicated to fighting for the underdog – one that has become a thorn in the flesh of the Government and other powerful interests?

The answer is the story of the Good Law Project (“GLP”), whose successes, it appears, have led the UK Government to resort to various tactics to try and stall further litigation by a body that has successfully challenged it on matters ranging from Covid-19 contracts to its net zero target.

With the English courts turning hostile to new GLP actions – on grounds founder Jolyon Maugham KC has yet to fathom, but against a background of political threats – Maugham has ambitions to add a Scottish presence to GLP’s armoury, and its profile north of the border may be in line for a sharp rise. But how did it all start?

Tax gain and political pain

About 10 years ago Maugham was appearing in tax avoidance cases (and not on the side of HMRC). The subject was making the political agenda. “I made the choice to engage in an educated but also a political way with that very political debate. I very quickly became quite influential in this space; I was advising the Labour Party, I had a very good relationship too with the then Financial Secretary to the Treasury David Gauke. So I was wearing a number of different and sometimes conflicting hats. And I suppose that political strand of work just reminded me of who I wanted to be” – on the side of the underdog, that is.

After advising the Avaaz campaign group over a tax amnesty it wanted to challenge, he began to consider “this question of whether strategic litigation might provide some answers where politics couldn’t”. He brought the first GLP case in his own name; it ended with the Uber company being liable to account for VAT. “That was a very GLP type of case, a fairly narrow technical tax point and a fairly vigorous public facing campaign, and those two elements are pretty central to the way the GLP works now.”

Without a higher law such as a written constitution, Maugham observes, litigation “may not be that effective in its own terms”: a successful judicial review of central government often results in no more than a declaration that it has breached the law. Nevertheless, “Litigation can shine a light on abuses of power, can speak a language that politicians do understand – the language of political pain.” And it can give journalists new angles on vital subjects such as global warming, on which they might otherwise have difficulty writing in ways that lead to people reading and responding to their articles. 

That ability to engage with the public about the law has been crucial to GLP’s growth. With more than 90% of its income coming from the now more than 30,000 people making small monthly direct debits – averaging maybe £9 – “you have to spend a lot of time thinking about how to speak about the law in ways that resonate broadly”. Twitter, Instagram and an email list now more than 300,000 strong are key, “because very often the causes that we take up are not liked by the cultural power elite and so go underreported in the outlets they own”.

Lawyers’ concerns

How does GLP identify the cases to bring? Broadly it has three thematic areas: good governance, or in plain language holding power to account; the environment, particularly climate change; and what GLP tags “No one left behind”, which is fighting for communities it thinks are being neglected or victimised. “That third strand I think is probably the most difficult – sadly it’s a big bite to swallow; ‘leaving fewer behind’ would be a better description of our achievements as opposed to our ambition.” 

Much the largest proportion of its work concerns the first of these. “Although I’m sometimes styled by my detractors as radical, in truth I have a very boring, recondite, traditional lawyer’s concerns for the processes by which state power arrives at decisions”, Maugham maintains. “About as core a lawyer’s belief as it’s possible to find.”

GLP’s campaigning activity is as important as its legal cases, however, and a desired outcome, if achieved, may ultimately be due to either or both. “Sometimes we build up a campaign in a space before we bring litigation; sometimes after we bring litigation we use the voice that we’ve then created to carry on campaigning. Usually one of those two dynamics is present, but there are some issues about which either the GLP or I feel very strongly and on which we speak even though litigation is unlikely to result.”

GLP’s track record is notable. Practising what it preaches about transparency, its website (goodlawproject.org/) carries a table, updated quarterly, of every case it has brought, with an assessment of its level of success in both the legal outcome and the campaigning outcome. Of matters concluded, the wins clearly outweigh the defeats. “We massively outperform any benchmark you could possibly choose”, Maugham declares. “Something like one in 40 or one in 50 judicial review cases that is commenced succeeds in court; our record is a high multiple of that. But I certainly wouldn’t pretend that we are immune to the forces shaping the conduct of justice in the High Courts and the appellate courts in England & Wales.”

Pushback

Increasingly it is facing headwinds, particularly now over standing to sue, on which Maugham has some pointed observations. “It’s undoubtedly true that the courts have become enormously hostile to the idea of the GLP bringing litigation, I think in a way that lacks principle. Since Rishi Sunak issued a statement last August that unless judges clamped down on litigation brought by the GLP, he would change the laws on standing, there hasn’t been a single case I can recall where a court has accepted that we have standing. 

“I think that response of the judiciary is understandable, but I don’t think it is principled. I also don’t think it’s helpful, because it’s not that difficult for GLP to do what it has done, which is respond by litigating through third party claimants. The issues that we litigate on are necessarily issues of public concern – we can usually find a small not-for-profit or an individual that is directly touched by the issues, and we can meet their legal costs and litigate the same points through them.”

He adds: “I do want to make this point: there is something to me deeply unattractive about the pushback in the English & Welsh judiciary against crowdfunded litigation. There’s a sense that normal people who fund our cases in their tens of thousands somehow don’t have a proper interest in the litigation they are willing to fund. And I can’t but contrast it with the attitude the courts have adopted in the past to establishment figures like William Rees-Mogg and the approach that the judiciary has had to their standing. It doesn’t feel to me very principled, and it seems to me difficult to explain otherwise than by reference to a kind of institutional preference for establishment power.” 

When that hurdle has been overcome, the Government has attempted to put costs estimates in the way, at levels that “have shocked even the most hardened and cynical public law specialists in England, and I have personally little doubt that those bills are intended to dissuade GLP from bringing litigation. As you can gather, I’m not very happy about how public law operates in England at the moment. I can be and am sympathetic to the political pressures that judges face from a bullying executive; but the outcome isn’t one that feels to me conspicuously like justice”. 

Scotland: a different landscape?

All this helps to explain why, last November, GLP announced plans to open a Scottish office, not least because Maugham believes the Court of Session, protected by the Act and Treaty of Union, is more insulated from threats by the state – or, as he puts it, “beyond the comfortable reach of the Conservative Party”. This base would support litigation on UK as well as Scottish causes in appropriate cases. Not that Scotland’s judges have a reputation for radical action, but “at a time of social retrenchment you might be quite happy to have conservative institutions which react more slowly to external pressures, and that’s how I feel in broad terms about the Inner and Outer House”.

He also hopes the Scottish courts would be more likely than the English to look at the substance rather than the form of an action when considering caps on expenses. “The cost capping rules in England & Wales are statutory and so quite inflexible, and don’t seem to contemplate that public law actions can be brought in a private law sphere and so benefit from cost protection.” Thus he failed to obtain costs protection when suing Uber, in form a private law action in his own name over the princely sum of £1.06, but which ultimately led to recovery of about £600 million for the public purse. Would the Scottish courts have taken a similar line on capped expenses?

Scotland has already been the springboard for the case of which Maugham says he is proudest – the Wightman litigation during the pre-Brexit turmoil. “That was extraordinary”, he recalls. “It went from the Outer House to the Inner House on permission, then back to the Outer House on substance, then was appealed on substance, and the Inner House referred the question to Luxembourg.” The Westminster Government instructed five QCs to try and persuade the Supreme Court to hear an appeal, and failed; the reference was heard by a unique full bench in the EU Court of Justice with a judge from every member state; the case was opposed by the EU Council and Commission as well as the British Government, but the court nevertheless ruled that the Westminster Parliament could unilaterally revoke the notice to leave given under article 50 of the EU Treaty. “And I think that was a pretty extraordinary achievement. Nobody gave us a chance.” 

Finding a Scottish qualified public law solicitor of the right calibre for the proposed office has not been easy, though discussions continue. “I think exactly what form the Scottish office takes will depend on whether we are able successfully to recruit the right lawyer to head that office. This is very difficult work that we do, and it’s not really a surprise that recruiting for it is challenging.”

Indeed, even success in court does not always translate into results in the world outside: Brexit has happened despite what was achieved in Wightman. But Maugham is philosophical. “You can only do what you can do. I try to bear that in mind. I try to play my part, and I understand that there are many things beyond my control. When it comes to what compels and motivates me, that is good enough actually: I’ve done what I can do to progress something I care about. To me that’s enough.” 

Not someone who keeps a low profile on an issue he feels strongly about, Jo Maugham’s latest brush with controversy is his aligning himself with (currently) nearly 300 lawyers who have signed a declaration that they would refuse instructions to work on new fossil fuel projects or prosecute climate change protesters opposing new projects. Taking a stand on refusing to “support laws that defend those who destroy the planet, and criminalise those who try to protect it”, the signatories have stirred up strong views around the cab rank rule, which barristers (and advocates) found on as a principle to detach themselves from the causes they plead.

Maugham recognises that he might come to be seen as some sort of moral policeman, but denies that it might impact negatively on GLP’s work. “I can tell you for sure that the anger of the Daily Mail and fury on Twitter do not correlate to a falling off in financial support for GLP”, he asserts. “I’ve had lots of very supportive messages from people who I know are GLP supporters and funders, and I do think that climate change is the existential issue of our time.” 

Supporters would have to vote with their wallets, as GLP has no plans to adopt a governance arrangement like that of Liberty, for example, under which a council is elected that has oversight over the organisation. “I think those models have advantages; they also have disadvantages, and for the moment we don’t plan to replicate that model.”

Readers interested in finding out more about what makes Maugham tick might like to look out for his book Bringing Down Goliath, published on 27 April by Penguin Random House. It isn’t just the Good Law Project story: “It’s also forward looking and a considerable part of the book is taken up with a discussion of how the law is not working as it should, is failing to hold power to account and in fact has a sort of hegemonic quality, a quality of conserving things as they are rather than delivering justice for those who question the exercise of that power.”

A speaking and signing tour will include events in Edinburgh and Glasgow over the summer – details to be announced.