Why Law is Like Magic (and Why it’s Not)

The news of a new Master’s degree in Magic at the University of Exeter—due east of the Witch Museum in Boscastle, Cornwall—inspired this post; that and pondering the effect of Latin legal phrases such as the presumption of causation res ipsa loquitur (the thing speaks for itself).

As well as privileging dead languages, law is like magic because it’s ceremonial. Its agents dress up, often donning black robes, they employ titles and a strict hierarchy, there are arcane rules which operate with or without the knowledge and understanding of the participants, there are propitious and inauspicious times and seasons, it has a certain glamour, being one of the few disciplines still centred on the intellectual ability of categorical thinking, and it has far-reaching material consequences.

Law is not like magic because it’s not an irrational, unsystematic, culture-specific sprawling set of assertions based on childish and egotistical wish-fulfilment widely considered demonic. (Although modern-day lawyers might consider that an apt description of Chancery and certain Men’s Rights organisations have exactly that view of Family Law.)

But is the above a fair description of magic? There’s a distinct lack of an agreed definition for this widely disparate set of phenomena—or even any agreement over what they have in common. In The Two Towers, the second book of The Lord of the Rings trilogy, Galadriel, Queen of the High Elves, makes that plain to Sam the Hobbit, companion of Frodo:

‘And you?’ [Galadriel] said, turning to Sam. ‘For this is what your folk would call magic. I believe; though I do not understand clearly what they mean; and they seem also to use the same word of the deceits of the Enemy. But this, if you will, is the magic of Galadriel. Did you not say that you wished to see Elf-magic?’

^{Fellowship of the Ring Book II Chapter 7: “The Mirror of Galadriel”}

So if even hobbits and elves can’t agree on the nature of magic, what hope is there for us humans? The link above leads to a fansite that quotes the author, JKK Tolkien, explaining this scene with “the distinction between magia and goeteia”, in an unsent letter to the Scottish author Naomi Mitchison—whom I once had occasion to witness in person declaring to Kirk ministers that “the witches are coming back!”. Her point being that it was the alliance of Kirk and State that had burnt them.

Tolkien’s point is that magic as functional technology is permissible and distinct from supernatural deception which, other than in harmless displays of wonders, is not. This could be read as a Neo-Platonic stance, open to useful and practical magic but opposed to malevolence and mimicry. Keith Ward, author of Religion and the Decline of Magic, details the continuance of all sorts of folk magics—some adopted as scapulars and sacramentals—under Catholicism and their repression under Protestantism.

Mitchison’s declaration may have been less theological than sociological: the witchcraze of Western Europe tended to target women of property (being widows) and was highly convenient to envious neighbours who could lay claim to their land. This perspective is shared by many Scots today as the repressive Hate Crime legislation finds its first victims, with the suspicion (supported by many social media posts of intent) that it is being leveraged for ideological intimidation and revenge.

The programme director of the new MA in Magic and Occult Sciences, Dr Emily Selove, is an Associate Professor in Medieval Arabic Literature and is especially interested in “the overlap between poetic and magical language” and, glancing at the curriculum, it’s certainly interdisciplinary. Billed as offering the opportunity to specialise in “the diverse history of esotericism, witchcraft, ritual magic, occult science, and related topics”, it’s housed in the Institute of Arab and Islamic Studies and promises: “Decolonisation, the exploration of alternative epistemologies, feminism, and anti-racism are at the core of this programme.”

Well that’s all very well, but notable in its absence is the exploration of diverse ontologies (AKA metaphysics). These good people clearly envisage a good few experiential classroom sessions, carrying over to the nearest artisan vegan bakery, hammering out just exactly how the liminal discourses of queer People of Colour were even more marginalised by White male clergy. I’d be extremely disappointed if that didn’t come up at some point. However my question, in the light of Arthur C. Clark’s take on magic being indistinguishable from “any sufficiently advanced technology”, is always going to be: how does it work? Even if the answer is only ever theoretical or expressed as our best guess as to how the practitioners understand it to work.

There’s an overlap between magic and law in Agatha Christie’s The Pale Horse. One circle is cast rather dramatically by a trio of women in a spooky hotel while a debarred lawyer, encouraging persons with inconvenient relatives to place a bet with him, is circumspect about law. Somehow these spheres of influence meet in the middle. The indomitable Miss Marple finds out how (but you won’t hear the dénouement from me) mostly because she refuses to believe in magic. In this case, it’s diversion.

So what definitions of magic are there? How can someone affect something without apparent use of any natural means? Let me count the ways:

1. Alchemy
2. Contagion
3. Likeness
4. Personification
5. Similarity
6. Sleight of hand
7. Superstition
8. Supplication

The first is the attempt at holistic amelioration on diverse levels of reality notable for its spectacular lack of success—a spectacle attributed by its devotees to the prudent desire to hide its real success. (If you found those words amazingly well-written and want to read 92,000 more on the subject, see Alchemy at the Chalkface: Pirsig, Pedagogy and the Metaphysics of Quality.)

The next four are varieties of sympathetic magic theorised by Sir James Frazer in The Golden Bough and subsequently elaborated by others. The sixth is the deceptive art of diversion practiced by politicians and stage magicians alike. The seventh is the umbrella term for all the others used by people with an unshakable belief in atomistic determinism not shared by physicists. At least not after Einstein.

The eighth is the theological problem: supplication of who exactly—or what? Which brings me back to my question: how does it work?

The non-academics tweeting about the new MA are very concerned about the answer—and I don’t blame them. Western magical novels and (especially) TV series tend to be a bit vague about this. The Good Witch started off slightly witchy but the scriptwriter, no doubt due to Hallmark middle American audience comments, swiftly toned it down to a very vague Law of Attraction and the Power of Positivity. At the other end of the spectrum is The Craft, where some kind of supernatural entity, introduced as morally ambivalent but assumed at the end to be evil, is pulling the strings. The Order blends this with some attempt at magical metaphysics but by the time the demonism becomes explicit (mopping up the blood after the constant goat sacrifices is a bit of a clue) we’re already invested in the lives and loves of the characters. Bewitched just completely ignored the mechanics of magic by diverting attention to Samantha’s cute nose and Charmed, after at least one mention of “the old gods and the new” took the cookery book (and cleavage) approach.

Perhaps because of the erudite Giles (“of a British library, or The British Library”) Buffy, while merrily stealing entire episodes from Charmed, and vice-versa, at least attempted to ground its uncanny reality in some kind of coherent scheme by referencing its own version of the multiple dimensions of Buddhism. Apart from some Christmas carolling, there are no spiritual references in the Harry Potter series and JK Rowling, despite glimpses of her clear familiarity with the Western esoteric tradition, writes in the British absurd tradition of Lewis Carroll.

Still, getting back to Latin and other prestigious dead languages, all these contemporary tales have three elements in common.

• Strong emotion
• Will
• Words

With no agreement on the form, content or scope of magic, it may be distinguished from ex opere operato (automatic) sacramental operations, as the first element is replaced by the power of the Holy Spirit imminent in the Church; and from the law, as that same element is replaced by reason.

Law, religion and magic have something else in common: whether or not they are the opium of the people, as Marx put it, they are certainly the cry of the oppressed. All three may be used with malevolence, certainly, but people turn to them when nothing else works.

I am not opposed to this new MA. I wish the staff and students well, and—if they are not already on the recommended reading list—I strongly advise them to consult the oeuvre of Dame Frances Yates and of Prof. Ioan Petru Culianu. Clarity about the theories and practises of manipulation of reality may be very helpful in this age of deceit. Finally, despite the widespread opinion that they customarily do the contrary, I believe that it behooves practitioners of all three disciplines to act according to the motto of Angel Investigations: We Help The Helpless.

Magical multicoloured tree with spirals

Thanks to Victoria Borodinova for releasing her image Tree, Plant, Crown, Trunk, Fantasy into the Public Domain.

Shalom/ Sala’am?

Many years ago when I was an undergrad at a posh Scottish university, I handwrote an essay for Practical Theology that was marked down severely for naivety by my lecturer, a former Secretary of the World Council of Churches—an English, liberal, Anglican minister.

My naive analysis was that a Roman Catholic Irish Republican and a Protestant British Unionist, both born and living all their lives in Northern Ireland, would never agree on constitutional arrangements so long as they prioritised their identity over peace.

I didn’t write “constitutional arrangements” then but I would now because that’s what I meant. Identity politics were certainly rife in the late 1980s but that’s not how we referred to them. The only available alternative meta-analysis was Marxian, as full blown Critical Theory had yet to spread its spores all over academia.

His solution for the ills of the Northern Irish body politic was basically the talking cure, which in these islands usually translates to a listening cure—as dissidents are treated to middle-class Southern English people (yes, the women are just as bad and yes they’re mostly White or assimilated) jawing on about being reasonable, to Yorkshire regionalists or Scots nationalists or Welsh miners or Irish Republicans or Ulster Unionists, with absolutely no awareness of their own embarrassingly meagre grasp of relevant history or culture and absolutely no willingness to take responsibility for Westminster’s insidious role in producing current oppressive material relations.

I’m not being fair, I admit. He was a very nice gentleman (they usually are) and honestly believed that with enough hand-holding and Kumbaya all would be well and all would be well and all manner of thing would be moste well—as St Julian of Norwich almost said.

Now let me fess up: I am Roman Catholic, ecumenical, and have held hands in an ancient Scottish abbey while leading, unabashed, that very hymn. It is a powerful African affirmation of the incarnation—the presence of God among the people. When people focus more on what unites them than on their divisive identities, that kind of affirmation can be deeply healing. What tends to happen though is that people start to identify with a third community: Corrymeela or Iona or Taizé…or with some political movement that takes on and replaces the phenomena of church.

There’s nothing wrong with that, provided it doesn’t lead to cultish behaviour or self-deception but, as people move out of Identity A and Identity B towards Identity C, it becomes increasingly difficult to persuade those left behind that there’s any overlap and—in extreme cases—these movers and shakers may end up being accused of treachery: how could you shake their hands, after all they’ve done to us?

I’m also being unfair to women who, notably, dominate peace movements—although usually on the unproven and sexist assumption that one sex is innately more aggressive than the other and that had women been in charge everything would be currently wonderful. I’m not a fan of sexism and I think this attitude is extremely naive.

I’m also not in favour of White Southern English Liberal Anglican ministers (of Church or State) who attempt to impose their religion of Reasonableness on everyone else because persons with that identity can be every bit as insidiously evil as anyone else. Rex Harrison’s facetious why can’t a women be more like a man? is echoed in their every Reasonable condemnation of behaviour abroad: why can’t they be more like us? Yet the list of atrocities committed by the British Empire is so long, you must have heard about at least one of them.

As sectarianism loses its grip (young people in these islands, where it used to matter, tend to care very little whether someone’s family is Catholic or Protestant these days) constitutional arrangements involving Northern Ireland may be resolved due to economic considerations rather than those of Christian denominational identity. Brexit, trade and immigration appear to be key points at the moment.

An immediate difference between Northern Ireland, South Africa and Israel/ Palestine is that the first two names do not seem to be extremely objectionable (to Catholics/ Protestants and Blacks/ Whites, respectively) whereas the name on each side of the latter binary seems now extremely problematic for the other.

While it is true that some Palestinians have dual identity—being ethnically Palestinian and legally Israeli—I have heard on social media and also in person that these people feel they can never return to Gaza or the West Bank for fear of being branded as traitors to their people.

So the official Israeli solution that all Palestinians should become assimilated citizens of Israel and submit to its laws and social mores seems at least unpopular, if not unworkable.

Solution 1

What if there were another name for that whole land—not Israel or Palestine, with all their associated cultural values, but something fairly neutral, like “Levant”?

At the moment, tragically, it’s very clear why the Lex Talionis was a legal improvement on internecine blood feuding. Each life lost by one side is generating the will (and the reality) of killing many more of the other. As I write, it’s very much one way—but what of the future and what of the situation of those associated with one side living in countries where those associated with the other massively outnumber them?

There are two strategies for stopping the bloodshed:

1) kill all potential terrorists and, as they’re difficult to distinguish in terms of person or place, just bomb everywhere they might be.

2) ask people to stop killing each other.

Neither strategy seems to be working. Even if every single Palestinian in Gaza is massacred, is the Israeli Government naive enough to imagine that the reprisals will end there?

People in trauma cannot be expected to act reasonably, and cannot be expected to make responsible decisions about where the line between defence and attack lies. Every person in that land appears to be in trauma now, even those in charge of it, on either side. They are not going to desist from attempting to destroy those who have attacked them and killed innocent members of their community.

Asking traumatised people, terrorists or not, to stop killing those seemingly intent on killing them is unlikely to meet with success. People must be forced to lay down their arms—but not forced by their enemies. Therefore, the question is, what force is available to massively overpower both sides to mutually guarantee the safety of survivors?

Solution 2

What if UN peacekeepers (from countries other than Israel, Palestine, USA, UK, Germany and Austria, and no Jews or Muslims) flooded Israel and Palestine, confiscated all of their arms and imposed martial law until a pacific political solution was found?

Even if both solutions were adopted (I’m aware that both solutions are extreme but their combination seems preferable to Armageddon) there would still be the ongoing trauma of the bloodshed and the very human desire for revenge. For this there are two possible solutions:

Solution 3a

What if there were a Law of Forgetting—that for 100 years no narrative of past bloodshed in the land could be published or spoken of in public and that public discourse were laid under an enchanted sleep, to give time for the body politic to heal?

Solution 3b

What if there were a Commission of Truth and Reconciliation—that in every village and every town and every city men and women and children could tell their truth of their participation in past violence, and of suffering, and be heard without call for, or fear of, reprisal?

For 3a the experience of Spain post-dictatorship may be helpful and for 3b the experience of South Africa post-Apartheid.

I am quite aware that these 3 solutions may be exactly what this conflict was engineered to bring about: Problem, Reaction, Solution. Yet I think that the technocratic aim would be different: total surveillance, digital ID linked to access to currency and all social interaction. It is very likely that the powers-that-be will try to use this conflict not only as yet another ground-clearing for the real estate opportunities of disaster capitalism but also in order to impose a technocratic state as they are doing in the Ukraine.

So peacemakers, if that’s what they really are, must be very wary indeed of that insidious agenda. Finally…the UN? No, they’re definitely not neutral but what other force is there that could be massively deployed and stop these people killing each other and avoid the situation escalating to the Samson Option: global thermonuclear war?

Thanks to Anon Anon who has released the image Palestine Gaza Hamas Israel Peace into the Public Domain.

…and you came to visit me

The first time I visited a prison, it was with the Cub Scouts. We all got locked behind bars (for a few seconds) and loved it. I still remember, after the satisfying clang of the lock turned by the big jangly keys, looking around and seeing…a hard bed, a metal toilet (no lid) and a barred window. When I asked the policeman (it was the local nick so just holding cells, not really a prison) “What do they do in here?” genuinely puzzled, he said, with a shrug, “Count the bricks?”

Was I about ten then? I’m hazy on the date. The second time was around a decade later and not in Scotland. The Jerusalem Praetorium, so my aunt (a Franciscan sister stationed in Jordan) had informed me, is one of the most reliably identified sites in the Holy Land. Famously known—all with reasons but confusingly—as the Palace of Herod, the House of Pilate, the Antonia Fortress, Gabbatha, and the Pavement, it is the location of the prison cell of Jesus.

Actually there are two, so I don’t know if I was in the right one. What I do remember is that it was too small to stand up in, and to lie down in. I remember hunching inside (I must have been lucky avoiding crowds that day) and thinking: He was here. The Holy Land felt like a movie lot sometimes (there are two separate locations for the tomb of Christ, the Garden Tomb and the Church of the Holy Sepulchre, both with a venerable heritage and claim to authenticity) but this prison cell, this felt real.

The third time I visited a prison I’m not going to give you either the date or the location but I will say it was in the UK, it was the first of several prisons I visited, voluntarily, and I visited each one several times.

Why?

Again I’m going to be vague. It could be to visit a family member, a friend, a neighbour, an acquaintance—or maybe someone you didn’t know at all. A fellow human being who, for some reason, and for some period of time, is behind bars.

Why?

Why would anyone want to do that? Someone has (presumably) broken the law. Why not leave them to it?

Maybe for the reason that the policeman’s flippant (and truthful) answer stayed with me after all these years. Maybe because of that cramped stone cave. Maybe because my father was also innocent and was a prisoner. Not, mostly, behind bars. The Nazis didn’t have all their P.O.W.s in solitary all the time. But certainly deprived of his liberty.

Yet the guilt or innocence of prisoners, while of great importance to them, isn’t the main reason why people like me (and maybe you) find ourselves visiting them. I know that sounds strange, and not very just. After all, should we really be making life easier for people being punished for a crime? What about their victims?

I don’t know their (presumed) victims. I do know that there’s someone in prison and that I believe that visiting them may do both of us some good.

So do the authorities. At least for the prisoner’s sake. And this is the first thing to say about prison visiting. You are, willingly, putting yourself into the hands (quite literally) of the authorities. You won’t get in until they say so—and you won’t get out either.

Think about that. It can be a bit nerve-wracking. There are forms and phone calls and doors and locks and fingerprints and lockers for belongings and a sniffer dog (don’t pat the dog, no really, they know he’s cute) and lots and lots and lots of waiting, for the next stage.

For the mythically-minded, the Descent of Inanna comes to mind. You shed your outer layers: jacket, gloves, hat, car keys, credit cards, mobile phone. Any gift has to be notified in advance (and is not given directly to the prisoner) and you walk into the visiting area (eventually, because the whole process of entry can take an hour, so do go to the loo at Reception!) with some change in your pocket, maybe a tissue, and that’s it.

The staff are, at least, civil. In my experience, that’s the baseline but usually they’re amicable, even friendly (I know one’s a translation of the other but the second feels warmer).

We (the free) walk in first. We’re assigned a table number, each prisoner has one, and—when they all come in—they have to sit on a different coloured chair. You have to open your mouth and stick your tongue out at the guard and if you hug or kiss the prisoner they’ll get frisked at the end. Because people try to smuggle things in. Seriously.

Then someone (not the prisoner) will go up to the hatch for sealed cups (no, don’t take the lid off) of tea or coffee or cartons of juice, and biscuits. Don’t be arsey about the selection. It’s a treat for the prisoner. This is another county. The rules are different here.

The guards stand around the room, watching. Well you’d complain if they didn’t, wouldn’t you? You’re in a room with a large group of (presumed) lawbreakers. They’re unlikely to start anything. But it’s a risk. Think about that.

About being arsey. Don’t. Just don’t. It’s not about you getting in your Guardian reader civil liberties points. You may be escorted from the building, early; the person you’re visiting won’t—and he may suffer for your outburst. So be positive about the experience but not presumptuous. The guards are playing out possible scenarios in their heads and in some of them you end up imprisoned or dead. Think about that.

All the prisoners are the same sex (in theory). That changes things. So whoever in your group (because you might be two or three) isn’t, may be aware of that. There’s a children’s corner. They’re (hopefully) not really aware of the underlying tension in the room. Everything is voluntarily circumscribed. There are things you don’t say and things you don’t do.

Okay, enough gloom. What’s good about this situation? Chat. Talk about family and friends. World and national news probably isn’t a good idea. It’s too remote, especially for longer sentences. Football. How’s the team doing? What about that penalty? That’s good if you can do it. Remember he has TV. So he’ll know.

Share your life. Keep it light. Remember he can’t solve problems in here so don’t give him any. Don’t boast, but share joys. There’s a world out there, let him keep in touch.

Listen. There will be a detail. The food has changed. Different job. That guy is a good mate. Bit dodgy. (Said in a whisper. No don’t look. No it’s not smart and yes you’ll be noticed.)

Something about the lawyer. Guilt and innocence it’s just not your concern. Not today. It’s all theoretical. He’s in here. They think he did it. You keep an open mind and nod along to whatever he thinks. This is NOT the place to play judge and jury. No matter how many cop shows you’ve watched.

Remember the power differential. Always. You’re free. He’s not. Underneath his amiable exterior (because he’s pleased to see you) there’s probably seething resentment against the screws/ the system/ her that dobbed him in/ the mate that dared him/ got him drunk. Don’t go there.

Time’s up. Maybe a hug. Take your cue from him. Back they all go through the gate. It’s not just a door.

Clang.

A tangible feeling of relief runs round the room, mingled with sadness. Some family members (usually female in men’s prisons, for some reason) start being arsey with the guards. Get that door open! I need to pee! Because they can. Understandable. Not advisable. The ascent is quicker than the descent.

Outside. Fresh air. Walking to the car. Liberty.

We don’t think about it till it’s temporarily abdicated. It’s a previous gift.

Why do I visit prisoners?

For I was hungry and you gave me something to eat, I was thirsty and you gave me something to drink, I was a stranger and you invited me in, I needed clothes and you clothed me, I was sick and you looked after me, I was in prison and you came to visit me.

Matthew 25:35-36

I don’t think the point of that passage is the heavenly reward. I visit a prisoner because as well as keeping a link to civil society and his hopes up that he’ll be able to rejoin it, safely, even if he has (perhaps and perhaps only to some extent and temporarily—or perhaps not) forgotten his humanity, visiting him may help me remember mine.

Padlock on heavy chain on iron gate

Thanks to Alex Borland for releasing his image Rusty Padlock and Chain into the Public Domain

Legal Action Without a Lawyer – Part 4: Preliminary Hearings & Judicial Mediation

Preliminary Hearings (PH) and Judicial Mediation (JM) are quite different but I’m writing about them in the same post as I’m not allowed to reveal anything specific about the latter—as that could potentially prejudice the fairness of the case, especially the Final Hearing.

Preliminary Hearing by Phone

These days a PH—unless it contains procedures usually (I think only, actually) done at a public hearing, like strike-out of the whole or a part of a claim—is likely to be conducted by telephone. This is a bit odd but you’re probably used this kind of domestic formality from Lockdown and have evolved ways to cope with it.

I got a member of my family to stay with my Mum (with instructions not to turn on the TV, as she’s quite deaf) to avoid her wandering into the room to enquire who’s making the dinner. I also dressed in my suit (I think I had my slippers on TBH) and made sure I’d been to the loo and had a glass of water and a notepad and pen handy, my computer on, connected to the Internet, and the series of documents relating to the case all open in a handy folder.

As the case goes on, it may become impractical to have them all open (especially all the correspondence) but you’ll get used to judging what’s at issue at each stage.

Previously, someone from the Employment Tribunal (ET) will have emailed you to ask for a phone number to use. I don’t recall being asked if the scheduled time was suitable. A Listing Letter is sent to both Parties for that but in this case it’s a case of: this is the scheduled time, you’re expected to rearrange your schedule accordingly. I imagine it’s possible to object that you’re unavailable.

The phone rings and a pleasant voice (in my experience) informs you that this is a call from the relevant ET and asks you to confirm your name. You shouldn’t have anyone else within earshot. The voice continues to name people as they join the conference call. Expect these:

• Claimant (that’s you)
• Representative of the Respondent
• Solicitor and/ or Advocate (Barrister) for the Respondent
• Employment Judge

Only one person can speak at a time but as long as the usual courtesies are observed there can be a minimal amount of interrupting. In my case I found the exact name of the case the Judge used to contradict the clueless Advocate (who clearly hadn’t read the Brief from his instructing Solicitor) about political stance as a potential example of a protected Belief under the Equality Act 2010. (That case is Blackbay Ventures.)

Firstly a word about cases. You’re not expected, as a Party Litigant, to know case law but if you do it helps. If you don’t know how to refer to a case formally, just be clear and give the information you do know. For example, the full citation of that case is: “Blackbay Ventures Ltd ta Chemistree v Ms K Gahir: UKEAT/0449/12/JOJ” and the legal convention is to put all that as a footnote in any legal document with just the name of the Parties, and thereafter only the first Party (surname or company name) in the text.

So, speaking about it, what do you say? Well, despite the “Your Honour, if it please the Court…” (tosses hair and glances at the door where we know The New Hire is going to come bursting in with Vulnerable Person Under Police Protection at any second) “…in the case of Smith vee Jones 1871 in East Cupcake, Missouri…” apparently you lose cool points if you pronounce the “v” or “v.” or “vs” or “vs.” (which is just plain wrong) as either “vee” or “versus” or “verses”. The thing to do is to read it out as “and”.

Now I don’t do this because I think it’s unclear, as there could be more than one Claimant or Respondent: Smith & Jones v Cassidy & Kid, for example, and three “and”s are not going to get you anywhere in terms of clarity. Lawyers do this because they know the cases (in theory) but as a former English teacher who’s impressed by plain English, I disagree. So I’d say: “Smith and Jones against Cassidy and Kid”. But I’m a rebel. You do what you think best.

A PH is usually about case management. It’s something that needs to be cleared up before the Final Hearing. In my case (there have been several) they’ve been about clarifying the claims and deciding on the next stage. The judge wasn’t certain I’d understood the difference between Direct and Indirect Discrimination. That’s a bit tricky but it’s like this:

• Direct Discrimination is when I don’t get an interview with the police because I’m not 6 foot tall (I’m making this up)
• Indirect Discrimination is when the door into the interview room can only be opened by someone who’s 6 foot tall (I know this is ridiculous and there’s no grounds for this in the EA 2010)
• There’s no discrimination when I’m not allowed to go on the kids’ dodgems at the Fair because I’m over 3 foot tall.

Other issues can be the Issues. Technically these are known as “facts in issue”. They’re couched as questions. For example:

• did Smith own a gun?
• if Smith owned a gun, was it a .22?
• what was the calibre of the bullet found in the body of Jones?

(Unsurprisingly, none of those are facts in issue in my case.)

The List of Issues is not just important to indicate what needs to be decided at the Final Hearing, but also what doesn’t. The Grounds of Resistance submitted early in the case by the Respondent has some bearing on this. It may contain at least partial acceptance of some facts:

• the Respondent accepts that Blinky is an extraterrestrial but not that Blinky originates from Mars.

(Not that one either.) It’s useful to compare documents because you can argue that there’s an implicit, reasonable, admission here. (No one could seriously argue that Blinky comes from Venus, because it’s too hot, or from Jupiter, as it’s too far away.) But be careful. (Just because Blinky isn’t Venereal or Jovial, that doesn’t mean Blinky is Martial necessarily: Blinky could be Lunatic.)

In my case a useful admission previously made by the Respondent is that I have RSI. I recently used this to argue that, therefore, insisting that I present medical evidence for this longterm condition is harassment. I’ve honestly got enough to do without needless paperwork.

Keep on top of the paperwork. Yes, everyone has seen Suits and yes they will try to “bury you” in it. I use large folders (ACAS, ET) and small folders (COT1, COT2, COT3/ Claim [ET1, Issues, Grounds of Resistance], PH1 [correspondence, skeleton argument], PH2 [ditto], etc.) Sometimes the Respondent will print out “the bundle” for you. This is all the documents you need for a Hearing. They may have done this due to my RSI. It’s excruciating for me to have to scroll up and down for lengthy periods. Mouse work is torture.

How about Judicial Mediation?

This may be the first time you attend the Tribunal. What are the DOs and DON’Ts?

Do arrive 30 minutes early. Do be nice to the staff. At first it’s like going through airport security. It’s their job. They want to stop people getting stabbed or shot, basically, so let them get on with the conveyor belt and the hand-held machines. There may be a café. Be nice to them too. And at reception. And to the court clerk. People talk to each other. Don’t sail in like a mediaeval Lord confronting peasants in his path. Don’t be overly deferential either. All these people are doing their job. Yours is to win this case. Pass through gatekeepers graciously, but keep going.

You’ll end up in the waiting room. You don’t know who’s who in there so stick to small talk with whoever accompanies you. Get someone to accompany you who can dress appropriately: clean, formal and modest—because the shell suit/ parka/ crop top/ mini skirt/ tight jeans/ platforms/ stilettos/ leopard print/ dangly earrings/ piercings/ paint job really won’t help your credibility—and can shut their mouth in public places, including on public transport there and back.

Then a staff member invites you into a room. Sit down at the table and take out whatever aide memoires you’ve brought with you. A notebook and pen; a laptop (there should be a place to plug in a charger); a bundle of documents (not necessarily “the bundle”; water (there will be some there too, a jug and glasses or sealed bottles).

When the judge walks in, stand up and shake his/ her hand (I’m going to use “he” from now on, as is still usual in traditional law writing, but I’ll use “she” for the Respondent’s lawyer). He’ll tell you not to call him “Sir” today but to use his first name, as today he’s not a judge. That was a bit much for me so I think I either avoided calling him anything or used “you” or “Judge [surname]”. He didn’t object. They take their cue from you, to some extent. His job is to get the Parties talking, at first by intermediary, him going in and out, perhaps eventually in the same room.

You can leave and nip to the loo when he’s out. Don’t dawdle. Don’t annoy him. But he’s used to people being nervous. Make it clear what you’re telling him and what you’re asking him to share with them. Those are not necessarily the same thing. Judges tend to be good listeners but don’t go on. They know the law better than you so don’t lecture them. YouTube might be wrong. Yes he has heard of Common Law.

I can’t really say any more about that and neither can you. No really. Shut your mouth about it when you leave. If there’s an agreement about a settlement, maybe via ACAS (an avenue that is always open right up to the judgment), that will include a clause about public disclosure of the Ts&Cs. So Mediation might settle the case. If not, the only thing you’ll be allowed to say about it is that it didn’t. In my case, it didn’t.

Preliminary Hearing in Person

This category is really a mixture of the two above. In terms of what you do, it’s like Mediation; as for what you say, it’s like a PH on the phone. You will be in a hearing room with the same people (or at least the same roles) as on the phone; you may have to sit beside one of them. In my case my companion sat beside the assisting solicitor. Fortunately his handwriting is indecipherable. Be civil. You might want to shake hands at the beginning and perhaps at the end. You might not. Don’t swear at them, shout at them or take what they say personally (if you can). If you are made to look unreasonable, it’s a point in their favour.

When the judge walks in, everyone stands and bows. So does he. It’s old-fashioned courtesy. Same at the end. Don’t be late back after lunch and do ask for a break when you need one.

Things go fast. There are no long speeches and absolutely no “walk and talk”. Forget the legal soaps. It’s not like that.

Thank people on the way out. Court Clerk, Receptionists, Security. Don’t go back into the café, the temptation to debrief will be too strong. Anyway the building closes early. It’s not office hours.

Hopefully, if your case hasn’t been resolved, you’ve survived to fight another day!

(This post is part of a series)

Part 1: Making the Decision

Part 2: ACAS

Part 3: Employment Tribunal

Thanks to Mohamed Mahmoud Hassan for releasing his image Lady Justice Silhouette into the Public Domain.

How to repeal Hate Crime law

When you’ve been in politics for as long as me (and that’s a good 5 minutes) you’ll know that politicians of major parties are generally selfish creatures. Whereas their constituents have multiple issues, members of the UK and devolved parliaments typically only have 4:

• Getting elected
• Benefiting from getting elected
• Avoiding responsibility
• Staying elected

All of their copious bullshit (sorry, but that’s what it amounts to) is dedicated to pursuing at least one of these aims. So only something that negatively impacts on any of these aims will cause them any concern. Any other strategy is bound to fail.

So I suggest we hit them where it hurts and fight fire with fire.

There were 82 MSPs reported as voting for the Hate Crime and Public Order (Scotland) Bill. HERE they are. The 2021 Act was laid before the Scottish Parliament and is scheduled to come into force on April Fool’s Day.

What if we all start reporting our offence at each and every one of these 82 rogues for any word or graphic that they publish and any action they commit?

The Summary is interesting…

An Act of the Scottish Parliament to make provision about the aggravation of offences by prejudice; to make provision about an offence of racially aggravated harassment; to make provision about offences relating to stirring up hatred against a group of persons; to abolish the common law offence of blasphemy; and for connected purposes.

Hate Crime and Public Order (Scotland) Act 2021 asp 14

…because it is clear that, far from abolishing the offence of religious blasphemy, this Act replaces it with a secular version.

The offence of “racially aggravated harassment” needs only 2 occasions of what could be speech or action intended (or interpreted by “a reasonable person” to intend) to cause alarm and distress to someone: https://www.legislation.gov.uk/asp/2021/14/section/3

The section 4 offences of “stirring up hatred” seem to be identical (behaving in a manner/communicating to another person material that a reasonable person would consider to be threatening, abusive or insulting) but for some reason s.4(1) only concerns race whereas s.4(2) concerns 6 out of the 9 protected characteristics in the Equality Act 2010:

• a) age,
• (b) disability,
• (c) religion or, in the case of a social or cultural group, perceived religious affiliation,
• (d) sexual orientation,
• (e) transgender identity,
• (f) variations in sex characteristics.

What’s missing? Sex and pregnancy. So if I harass a woman or a girl using offensive language about the female sex, or a pregnant woman with offensive language about pregnancy, I would not be guilty of an offence under this Act. In contrast, if I do that to anyone listed under subsections 4(2)(a-f), even once, I’m nicked.

There is no definition of membership of one of these 6 groups in s.4 (about “stirring up hatred”) but there is, in the previous section, about “racially aggravated harassment”:

“membership”, in relation to a group, includes association with members of that group

s.3

This membership identity may be simply presumed by the alleged offender. So if I see you coming out of a gay pub and shout a homophobic word at you, is it immaterial whether you “identify” as gay or not? That’s not clear and the presence of race in both offences might tend to cause police officers and jury members, and inattentive judges, to conflate the two sections. It gets even more confusing when we consider “association”—by whom? That’s a different concept from presumption but, again, will any of the above personages make that distinction?

One of the claims in my upcoming Employment Tribunal Final Hearing is that I was discriminated against due to my association with people of Russian and Byelorussian nationality. I have never claimed that identity or association but I was so associated, in the press, by others (notably, a war-mongering spy still employed as a lecturer in political communication by a Russell Group university).

Does that leave the door open for some miscreant to “identify” with a particular group in either s.4(1) or (2) and then presume a presumption of that group membership being the motivation of the alleged offender to commit aggravated harassment or stirring up hatred? This could get complicated.

So…from April Fool’s Day on, should you—perusing any public words published or deeds done by any of the 82 fools who voted for this tyrannical legislation—feel harassed (twice) about your ethnicity (real, associated or presumed) or threatened, abused or insulted (once) about anything in the s.4(2)(a-f) lucky bag, without further corroboration, fear or favour, you may at once make your way to the local cop shop, sex shop or mushroom farm…and get the bastards back!

Legal Action Without a Lawyer – Part 3: Employment Tribunal

When you get to this stage of dealing with the actual Employment Tribunal, the atmosphere changes. It’s not that the staff and the judges are unfriendly, on the contrary, I’ve found them all extremely helpful—and even the legal representatives of the other Party have been very civil, mostly. It’s just that everything is so formal. You get emails with attached letters that, below the addresses, reference numbers and names of Claimant and Respondent, start like this:

Dear Sir/Madam
Employment Tribunals Rules of Procedure 2013
I refer to the above-named proceedings in which correspondence from the claimant
was referred to Legal Officer [NAME] who directed that I write as follows:

And emails, with the case name and number in the subject header, that start like this:

Dear Sir/Madam
I refer to the above-named proceedings in which I act on behalf of the Respondent
and to the Tribunal’s letter of [DATE] in relation with the Claimant’s request of [DATE] for [WHATEVER].

Another big difference between the ET and ACAS is that there are so many forms! with ACAS there are only three that I’ve had to deal with:

• COT1—my claim form
• COT2—their resistance to my claim
• COT3—the proposed settlement

The CO, I presume, stands for conciliation – as the ACAS process is known as early conciliation – but I don’t know what the T stands for. The COT1 is important as writing it helps you as Claimant to edit what may be a complex and emotional narrative of events into a more succinct and objective legal document (not easy!) and it also lets the other Party know what claims they are dealing with. The COT2 is helpful, as it let’s you know what the other side are attempting to contest—so look for the differences between the two forms: what claims do they not mention? Gaps may indicate claims, or parts of claims, that they accept.

ACAS tends to focus on the COT3 because they’re all about trying to find agreement between the Parties.

With the ET, the only form that I had a template for was the ET1—my initial claim. After that, I either had to create documents myself (be prepared for a lot of looking things up online) or adapt something sent by the other Party.

Now, part of professional courtesy, especially for a lawyer (and as a party litigant—even though you’re neither a solicitor or a barrister/ advocate—that’s what you are) Is to recognise that people are simply doing their jobs. So a paranoid mentality of ‘these are evil people and they’re out to get me’ is not only inaccurate but unhelpful.

The Employment Tribunal is very definitely not out to get you. They really don’t care who wins a case as long as the Parties and their legal representatives abide by law and by ET procedures. That’s good. You really don’t want them caring about one side or the other but, as I’ve said, I do find them to be incredibly helpful – in fact had to be told, politely, to stop thanking ET staff by name.

Opposing counsel is also not out to get you, not really. They’re literally just doing their job: which is to resist your claims. So try not to take it personally. Remember that these are people working in the legal profession who sacrificed time and effort to study and further their career, and they most probably did it with some vision in mind of making the world a better place. So don’t demonise them. In fact, on three separate occasions they’ve done me a favour:

The first is when I printed out a whole bunch of forms to hand into their offices (there was an ongoing dispute about data protection and use of my private email at the time, so I was printing everything out, which was time-consuming and expensive). A well-dressed young man, getting into the lift when I was getting out, answered my enquiry about how to deliver these forms to the solicitor with a smile and an offer to do it for me. Which he did. I think he was a partner of the firm.

An associate of the same firm made a very good initial draft of issues. I literally wouldn’t have known where to start, and I said that when I thanked her in an email to them (temporarily granting use of my personal email to the firm but not to the Respondent). And then I redrafted it and filled in all the gaps that she’d left out. They may be civil, but you’ve got to watch them.

An advocate (that’s a Scottish barrister) of the firm told me that I needed to work on my claims. He was right, and I thanked him. Even though he clearly hadn’t read the brief and was rather petulant about the complexity of the case. Now, to be honest, the repetition of this “we don’t understand what you’re claiming” excuse is proving to be rather tiresome and, as I told ET recently, is really unacceptable given that I have complied with every request for clarification, in detail, despite the other Party withholding information (and my P45 and P60s, after a year). The overarching obligation of the ET is to put both Parties on an equal footing.

I’ve mentioned some of the key documents already, here’s a list of all the types I’ve had to deal with or create (sometimes more than once):

• ET1 – my initial claim
• Grounds of Resistance
• Claimant’s Agenda
• Respondent’s Agenda
• List of Issues
• Summary of Events
• Skeleton Argument
• Further and Better Particulars
• Request for Information and Documentation

As well as these documents there are also multiple legal actions taking place in emails and letters, such as Request for Strike-out, Application to Amend Claim, and Notice of Preliminary Hearing and Note after Preliminary Hearing – and the same two for Judicial Mediation.

So a top tip is to be really organised. Opposing counsel as all the facilities of a legal firm to work with, you don’t. So you need to download every email you get from them and save it in a clearly labelled folder, and do the same with posted letters and other documents. As a party litigant, the Ace up your sleeve is that you know the facts of the case better than anyone else—however you also have to keep your eye on the ball once the game of legal procedures starts because you’re opposed by people who are trained to be pedantic and the devil is very definitely in the details!

I know I said that I’d be discussing Preliminary Hearings and Judicial Mediation next but I felt the general introduction to the ET needed to proceed that.

(This post is part of a series)

Part 1: Making the Decision

Part 2: ACAS

Thanks to Mohamed Mahmoud Hassan for releasing his image Lady Justice Silhouette into the Public Domain.

Legal Action Without a Lawyer – Part 2: ACAS

The Advisory, Conciliation and Arbitration Service (ACAS) is “an independent public body that receives funding from the government” and the first thing to note is that ACAS, in a dispute, is not primarily concerned with either justice or the law. I’m not being critical of them. My experience has been almost completely positive. However an adviser will tell you that their function is what’s on the tin. Let’s go through the title and try and understand it better:

• Advisory – this doesn’t mean giving specific legal advice in the way that a solicitor may do – though they do advise generally on “employment law, HR processes and good practice at work” but rather informing the Parties (the Claimant and the Respondent) about ACAS and Employment Tribunal procedures. (You may see the Claimant referred to as the Complainant or the Plaintiff but let’s keep things simple.)
• Conciliation – this is basically about trying to broker a voluntary agreement. The ACAS agent goes between one Party and the other noting what they agree on, noting what they disagree on, and facilitating their communication in a professional manner.
• Arbitration – this differs from conciliation in terms of when the Parties are legally bound by the Agreement.
• Service – ACAS is there to help both parties in an impartial manner and also helps to keep the justice system moving along and to avoid a backlog of cases that really don’t need to go to court.

In conciliation, only when both parties accept the Agreement – in terms of both content and wording – does it become binding; in arbitration, the Parties voluntarily agreed to accept the decision of the Arbitrator (who may or may not be an employment judge) and no Party can subsequently reject the Decision.

Using ACAS, for either Party, is free.

If you’ve watched any trashy American legal shows, you’ll know that the way you win in court (after you’ve somehow managed to make yourself look respectable after a hot night of sushi and sex on the Senior Partner’s walnut desk with the New Hire) is to strut up and down the front of the jury, throwing accusations and your hair around, to distract Opposing Counsel from your anxious glances at the courtroom door. Then just as the gavel is about to go down, in rushes your anxious Associate (either the Schmuck or the New Hire will do for this role) spilling closely-typed documents from a huge pile of folders from which you are able to deftly extract the one piece of paper that proves beyond a doubt that when Grampa Beaverhat sold the saw mill in 1862 that corner of Willow Creek was actually under the state law of Nebraska! Or whatever. It helps if you bang these folders down in a decisive manner and of course you must have copies of said document which you just throw at Opposing Counsel and wave under the nose of the judge – who is amazed. Cue the cameras on the courtroom steps, more hair waving, and (if the New Hire has anything to do with it) you’re not going to get much sleep that night either.

Well it doesn’t really work that way in the UK. For a start we don’t do walk and talk. In fact, at an Employment Tribunal, apparently everyone is sat down the whole time ( I don’t know for sure because my 6 court days are in December). As for last-minute Discovery (as the Americans call it; we call it the Bundle) I’m fairly sure this would be frowned upon. And you don’t want to be doing anything that gets frowned upon. Not with British judges. Of course, at an Employment Tribunal, the other two members of the panel of three are unlikely to be judges. And there’s no gavel.

But I’m getting ahead of myself because the point of ACAS in a dispute is to help Parties resolve the matter before it gets to court. So how do you start the process?

As my dear mother always say, “when all else fails, read the instructions” (quoting the title of a 1938 book on the Bible by James Wendell Moore, apparently) and the ACAS Codes of Practice are very useful, for parties to check whether they’ve followed them or not, as this may establish reasonableness. (There’s also a helpline.)

The mechanics of making a claim are explained clearly on the ACAS website and whether you contact them by phone or their online form first, you don’t have to have all of the necessary information on hand immediately.

The procedures have changed in the last few years and now you should inform ACAS first, before making an Employment Tribunal claim. The advice of the ACAS agent is likely to be that if you’ve exhausted the internal procedures of your workplace (informal and formal discussions, including perhaps grievance procedures) and want to go ahead with a claim, then you’ll have to fill in a COT1 form.

In my limited experience of bringing a claim, success doesn’t depend upon drama but upon adherence to procedures. That doesn’t sound very sexy but it’s the best advice you’ll get from me – and the first part of that is to pay heed to this:

There are strict time limits for making a claim to an employment tribunal. In most cases, you have 3 months minus 1 day from the date the problem at work happened.

https://www.acas.org.uk/early-conciliation/how-early-conciliation-works

So in this blog post I’ve mostly told you to go and read the ACAS website. I’ll finish by giving you my experience of this service.

In my view, the only thing I did “wrong” was to robust reflect back to my employer exactly the legal advice that they had taught me in compulsory HR modules for staff. Although my reflections were mostly accepted, one senior academic took exception to what I since realised to be a Protected Disclosure for which the Public Interest Disclosure Act 1998 provides. So I see subsequent events as a sustained and vindictive campaign of victimisation, ending in my Wrongful and Unfair Dismissal – which is also Automatically Unfair as it followed the making of a PD, also known as whistleblowing. Therefore, although I willingly entered into HR procedures – including investigation of the Grievance raised against me and the one I raised against said academic – eventually I got really tired of facing senior academics and HR staff across the table when it was clear to me that their hostility had previously been recruited by others and was based entirely on prejudice.

Therefore it was a great relief to me to be able to email and speak on the telephone to an ACAS agent who was affable, a good listener, and frankly didn’t give a damn whether I or the other Party won. This indifference is a good thing. You don’t only want it at the ACAS stage but also when you get to the Tribunal. No member of the panel should walk in the court room with their mind already made up. So anything you can do to appear reasonable is in your favour. My point is that being abused and dismissed at work is a very emotionally bruising experience and can provoke some deep feelings. The ACAS agents are quite used to listening to people who are aggrieved and can relate their points to the other Party in a more neutral and dispassionate tone. This is very helpful.

At the moment (and I’m not going to give you the ins and outs because the process is confidential) we haven’t reached an agreement through ACAS but that is still possible, even when the case is heard at court, right up to the moment of the Panel’s Decision.

We have just under three months to go. Let’s see what happens. I’ll keep you posted. Next time I want to talk about Preliminary Hearings and Judicial Mediation.

(This post is part of a series)

Part 1: Making the Decision

Part 3: Employment Tribunal

Thanks to Mohamed Mahmoud Hassan for releasing his image Lady Justice Silhouette into the Public Domain.

Legal Action Without a Lawyer – Part 1: Making the Decision

As a Law student studying the LLB degree with the Open University in the United Kingdom, I thought my classmates may be interested in my experience as a ‘party litigant’ or ‘litigant-in-person’, in other words taking legal action in a civil (not criminal) case without a lawyer. Because it concerns the law, which can be technical, I’ll have to use some legal jargon in this envisaged series of blogposts but I’ll explain as I go along.

The first question for a party litigant (I’ll use that phrase because it’s the shortest one) is:

• Do you really want to do this?

It’s a tremendous investment in time and energy, a rollercoaster of emotions – fear, anger, frustration and exhaustion – but there is also exhilaration. It feels like building your own house. I’ve never done that (my DIY construction projects are limited to a couple of fairly robust compost heaps and a rather shoogily cold frame that produced tiny, sweet strawberries for a few years and is now falling apart) but I imagine that at some point right at the beginning you have to start looking up Planning Law and Plumbing.

There are two alternatives: hire a lawyer or don’t do it at all – and both of them are worth considering:

Hire a lawyer

Clearly, with a lawyer you get legal expertise, the other party will take you more seriously, there’s no danger of missing deadlines or not fulfilling judicial orders (instructions from a judge). In my imagination, because I’m not doing that, it must be like wanting to get from A to B in unknown territory and hiring a chauffeur who knows where to go and how to get there, safely and effectively.

So, to be honest, that’s the strategy that I’d usually recommend – I think it would be a bit irresponsible not to. A key consideration about hiring a lawyer is money.

• There is the possibility of a “no win no fee” arrangement, but I believe you have to read the small print on those (that’s always a good idea anyway).
• Another possibility, if you can’t fund it for yourself, is crowdfunding. That involves going public with the facts of the case, convincing people that your motivations are just and the cause worth supporting, providing updates as the case progresses – and steering clear of the laws of slander (spoken insults) and libel (printed insults, basically).

Don’t do it at all

Reading or hearing about the experiences of people who have brought a civil case may convince you that it’s just not worth it in terms of time, money, and stress. My advice, is to ask yourself whether the negative impact on your life would be worse if you did nothing, or not. In other words, could you live with that? Life is full of injustice and we don’t have to remedy every single wrong. Especially if you have an obsessive personality, it may be a difficult experience for you to get involved with legal action at all. It’s detailed, messy, and it takes a long time – so you may decide that life is just too short. Maybe your employer hasn’t treated you fairly but, hey ho, life goes on and there’s another opportunity just round the corner. This is an option you should definitely consider, seriously.

Do it yourself

So, I want to make it clear that I am very definitely not recommending this option. There are special circumstances in my case that have made this option more attractive to me – but even if you have similar circumstances to me that doesn’t mean that you should necessarily do the same thing.

Firstly, I’m a law student. Before starting the LLB, I studied almost every free Law module on the OpenLearn programme (there are three legal jurisdictions in the United Kingdom: England and Wales; Scotland; and Northern Ireland and the free modules mention all of them). I also paid attention to the compulsory HR courses, many of which have legal content, that had to do as a staff member of the Scottish institute of higher learning at which I was employed. I’m studying part-time; so far I’ve done Public Law (very pleased to get a Distinction in that) I’m waiting for the results of my Business and Employment Law module and next term it’s Contract Law – which is useful, because I began this legal action at the end of last year and the full hearing is scheduled for early December.

Additionally, I’m a proofreader, used to close reading, scanning and skimming complex documents; I have a Ph.D. and several other degrees; I’m a linguist who speaks a few Latin languages and Roman Catholic, so was brought up with a smattering of Church Latin; and I also happen to have a good friend who not only worked in training and recruitment for a huge company for years but successfully took them to court (not by himself, he hired lawyers) and is currently studying a Masters in HR. Those are pretty specific circumstances.

Finally, I’m the Chairman of a small but very feisty political party and actively involved in the freedom movement. One of the reasons why I decided to do this is to demonstrate – with all these caveats – that it’s possible for someone who is not a lawyer to bring a case to justice and to be taken seriously.

Luck of the draw

All of the above may sound as though Law is a rational discourse, governed by rules and reliable procedures. To some extent, I think that’s true but there’s also a good deal of creative narrative (sometimes very creative indeed) as well as plain luck – and I’ve heard employment judges say the same. In their very guarded manner, of course.

A chap I know – because our dogs play together when we’re out for walks – told me that he went along to an Employment Tribunal, just filled out the forms in the corridor outside, and won his case. I think he had help from Citizens Advice, which is another option, and there are several similar paralegal organisations – I mean that they have staff who may not be lawyers but they do have a certain amount of legal training. Another guy I know, in England, is putting tremendous amount of effort into his case and is really struggling.

My experience of the staff of the Employment Tribunal is that they are polite, indeed gracious, and have a real commitment to access to justice (a similar phrase is “levelling up”) meaning that anyone should be enabled to come to law, no matter who they are. This has most definitely been my experience of the judges, I’m happy to report, however it’s only natural for them to feel more affinity with the lawyers on the other side. There was one occasion when the judge said something in error – I know, because I looked it up afterwards – and opposing Counsel (the employer’s lawyers) kept quiet. So, you’ve got to watch them!

That’s it for this first part. Next time, I want to speak about ACAS and starting a claim.

(This post is part of a series)

Part 2: ACAS

Part 3: Employment Tribunal

Thanks to Mohamed Mahmoud Hassan for releasing his image Lady Justice Silhouette into the Public Domain.

In defence of Rachel Elnaugh-Love

If you know me as the Chairman of Freedom Alliance, you may be surprised at the title of this blogpost; if you know me well, you won’t be. Yes, as I said last night on her Telegram channel, Rachel Speaks Out, we have had our differences in the past but—especially as someone actively involved in small party politics and the wider freedom movement, as well as a student of law—I can’t support or stay silent about a malicious attack on democracy.

Lynn Irving, another co-founder of the LOVE party (which has decided for the time being not to register with the Electoral Commission as a political party) yesterday shared a letter to Rachel from the police inviting her for an interview regarding two accusations:

• using the words “presented by” rather than “promoted by” in her campaign imprint.
• using the name Rachel Elnaugh-Love on her nomination forms (and this on the ballot paper) when it is not the name by which she is commonly known.

Rachel is accused of violating the Representation of the People Act 1983 s.110 and s.65(a)1. (The letter gives the title of that Act twice, both times inexactly.) Let’s look at those provisions:

Firstly, there are 14 subsections (with numerous sub-subsections, and some sub-sub-subsections) in section 110, which has been amended twice and modified nine times. Nowhere in this incredibly convoluted text is a stipulation that the words “promoted by” must appear on campaign literature. It does not even state that the promoter must be identified. The relevant provision is s.110(7)a:

(7) The Secretary of State may, after consulting the Electoral Commission, by regulations make provision for and in connection with the imposition of requirements as to the inclusion in material falling within subsection (2)(b) above of the following details, namely—

(a) the name and address of the promoter of the material; and

So it’s up to the accuser, and the police, to verify that the Secretary of State has done so—and for them to check such regulations to see if any of those regulations have been violated. Because the Act itself has not. In other words, this is not only a malicious accusation, it’s also lazy. The accuser has not done his or her homework!

Looking at the relevant Electoral Commission regulations, it’s straightforward:

What an imprint must include

Throughout the UK, printed election campaign material must include the name and address of:

• the printer
• the promoter
• who it’s being promoted for (for example, the candidate or party)

However, again, nowhere does it state that the words “promoted by” must appear on campaign literature. The legal requirement is for the name and address of the printer and promoter. So, if it’s clear who and what those are, with any form of wording, the imprint is legal.

The second accusation appears to regard s.65(a)1a of the above Act:

65A False statements in nomination papers etc.

(1) A person is guilty of a corrupt practice if, in the case of any relevant election, he causes or permits to be included in a document delivered or otherwise furnished to a returning officer for use in connection with the election—

(a) a statement of the name or home address of a candidate at the election which he knows to be false in any particular; or

The key word here is “false”. The accusation is that Rachel is not commonly known as “Rachel Elnaugh-Love”—but the relevant provision does not contain or define the term “commonly known” and “false…in any particular” is very broad and ambiguous.

Let’s stop and think about naming. Imagine that a certain human being is known by one or more of the following appellations, to different people in different circumstances:

• Stan
• Stanley
• Stan the Man
• Stanski
• Old Stan
• Stanley-boy
• Bunter
• Billy Bunter
• Boris
• BJ
• Bojo
• Boris Johnson
• Stanley Johnson
• Stan Johnson
• S. Johnson
• B. Johnson
• Mr S. Johnson
• Stanley Johnson Esq.
• Prime Minister
• Former Prime Minister
• The Right Hon. Boris Johnson
• The Right Honourable Boris Johnson
• That Bastard
• Daddy
• Darling
• Honey pops
• Mr Bear

(I could go on, ad nauseam, but you’re probably already nauseated.) Insofar as each appellation clearly refers to the same human being, none of them could be held to be false. Rachel, Rach, Ms Elnaugh, Mrs R. Elnaugh, Rachel Elnaugh, that woman off Dragon’s Den, the Claimant, the Respondent, the Accused, Mummy, Sis, that nice lady over there, Rachel Elnaugh-Love, etc.—all these appellations may clearly identify the same human being, depending on the circumstances.

In the circumstances of a local election, Rachel, who has a very high profile, not only provided her full name and party name but her face appeared on leaflets, she was on various talk shows and was already a TV celebrity. So there was no doubt about the identity of the candidate.

It happens from time to time that a literal interpretation of a statutory provision is difficult as it is vague in application or yields an absurdity and this may be remedied by Judicial interpretation in 3 common ways: the Golden Rule (the narrow application determines the meaning of an ambiguous word or phrase, while the broad application rejects the wording as absurd—this rule does not remedy unfairness only absurdity); the Mischief Rule (“what mischief is this provision designed to prevent?”); and the Purposive Approach (“what is the purpose of this provision?”).

Taking these in turn: it is absurd to claim that “Rachel Elnaugh-Love” is a false name whereas “Count Binface” (who typically appears at the count with his whole head covered by a small steel dustbin) is not.

The mischief prevented by this provision is that of falsely impersonating someone (else). So, if I claimed to be “Rachel Elnaugh” on my nomination papers, I would be guilty of that charge (one wonders where this leaves trans-identified persons who have not changed their name by deed poll and are just starting their social transition) but Rachel was not claiming to be someone else.

The purpose of the provision is to identify someone clearly. Rachel has done that and, in the interests of democratic transparency, has indicated her affiliation to a group while standing as an independent candidate. She should not be punished for being candid with voters.

This is a malicious and lazy accusation by someone with limited knowledge of electoral law, and judicial interpretation, and no understanding or respect for democracy. The police would do well to ignore it, unless they enjoy being laughed out of court.

As for Rachel, my advice is that at the end of Richard Bach’s Jonathan Livingston Seagull:

“Keep working on love.”

3 female co-founders of the LOVE party smiling with hands up holding a sign with their lotus logo in front of a high hedge.

Image from rachelelnaugh.com.

Of States and Secrets

Studying Law when weighty questions are being asked in Scotland on (mostly misunderstood) matters of equality, human rights and the uncodified UK constitution is fascinating enough. Recently, I’ve also been preparing for legal action, quoting the Vento bands, setting damages for Injury to Feelings, down the phone to the ACAS mediator as my former employer seems to be running scared of the public humiliation of yet another Employment Tribunal case, preferring to settle out of court.

Fascinating though the 15th edition of Smith & Wood’s Employment Law is (I’d read about half of its 829 pages a few days after it was posted to me) it’s Stanton & Prescott’s 3rd edition of Public Law that’s more pertinent to the recent failed attempt by Holyrood to modify legislation passed by Westminster. I’ve observed previously the difference between the gracious restraint of legal discourse and uninformed party political rants on the (il)legality of the GRR Bill.

Brain whirling, I took time off my studies to watch J. Edgar, the Warner Bros biopic of the Hoover who headed the FBI for around half of the last century (not the previous and unrelated US president associated with the New Deal). Subtly directed by Clint Eastwood, its understated masculine gaze, verging at times on film noir, was enough to have critics calling it ‘controversial’ on release in 2011.

11 years on, One Nation Under Blackmail, Whitney Webb’s damning dossier of US politics, detailing and evidencing the ‘sordid union between Intelligence and Organised Crime that gave rise to Jeffrey Epstein’, is far less coy about Hoover’s rumoured homosexuality and transvestism.

Where Eastwood hints, with scenes of the devoted son so distraught by his mother’s death that he dons her clothes in front of the mirror, and of a touching and tragically frustrated bromance between Hoover and his second in command and longtime companion, Webb (ch. 2 & 4) quotes eyewitnesses to the scandal of this infamous inquisitor and blackmailer frequenting the blue suite of New York’s Plaza Hotel, known as ‘Mary’, in wig and dress, pleasuring Tolson and having sex with ‘blond boys’ and with Senator Joe McCarthy’s righthand man in his persecution of suspected communists and homosexuals.

J. Edgar is a difficult film to watch, its portrayal of the public derring do of his ‘G Men’ busting mobsters and his private stoic restraint in matters of the heart undermined by the evidence of Hoover’s hypocrisy hiding in plain sight: that he was soft on crime and unconcerned about being seen in flagrante as he was simultaneously being blackmailed to go easy on organised crime and blackmailing anyone who could publicise his sexual predilections.

Two decades before It’s Time, the Scottish Government-sponsored Equality Network’s moving 2013 video campaign for equal marriage (featuring several of my old friends) there was a scandal involving senior members of the justiciary being blackmailed by the pimps of rent boys. With associated concern over the autonomy of their judicial deliberations.

It seems to me that a secret of a public figure, however well-known, does not help a nation. It festers and starts a canker at the heart of public life. Catalyst for either compensatory action or reaction, it can lead to extreme decision-making in a state of schizophrenic politics where the truth is shouted in silence.

At the height of the US ‘Red Scare’, reticence about disclosure of sexuality would be understandable. Now, certainly in any liberal democracy, being so candid might be uncomfortable or even embarrassing if the game of Let’s Pretend has been played for some time (Hoover never married but the convenient strategy of the homosexual ‘beard’ is well-known) however the health of the body politic may depend on it. For the sake of the people, and government policy, a responsible state official may decide that it’s time.

Rusty padlock covered in cobwebs on a wooden gate

Thanks to George Hodan for releasing his image Padlock into the Public Domain.