By Paul Ray
When I spoke with Durham alumnus Jolyon Maugham, he didn’t speak to me in phrases or sentences, he spoke to me in paragraphs. As director of the legal-activist campaign group Good Law Project, his knowledge of the Government’s rocky relationship with legal transparency seems almost encyclopedic. We began our discussion with the issue of the Government’s alleged awarding of pandemic contracts, such as supply of personal protective equipment, to friends and political allies.
“At a fairly general level, what happens in times of emergency is that normal processes that secure value for public money — secure that bad shit doesn’t happen — get put aside. So you’re always focused on the outcome we need for stuff; we need it yesterday, let’s not do anything that’s going to slow us down. And that putting aside of process creates opportunities for bad actors to do bad acts. In legal philosophy there’s a term for that, which is a state of exception. And what should happen after the event is that investigators should look through what happened and identify the bad actors, and hold them to account, and punish them.
“What we’re learning now are two things. Firstly, that the Conservative Party took advantage of that state of exception to enrich its donors and associates and friends, and possibly even itself,” Maugham alleges. “And that there is no real interest in unpicking any of that, there’s no real interest in going back through what happened throughout the course of the pandemic to identify where there were properly wrongful acts. The notion that there might be, or indeed there very likely is, fraud in pandemic procurement, is not unique to the UK — it will happen all over the world. What’s troubling, I suppose, is that in the UK alone there is no interest in investigating it on the part of the authorities. So GLP has made a complaint to the Serious Fraud Office about a particular transaction, and as far as I can see, we made that complaint three or four months ago – it could not be less interested.”
One of the reasons Maugham’s name might be known beyond insular legal circles is the role he played in disputing and fighting Boris Johnson’s attempted prorogation of Parliament in September 2019. Prorogation is an antiquated term for ending a parliamentary session, effectively suspending it and preventing MPs from debating and voting. Some people argue that Johnson’s attempt to do this was an attempt by the Prime Minister to prevent elected MPs from forcing him to request an extension to Britain’s stay in the EU.
I ask Maugham how much warning he had to prepare for his ultimately successful legal challenge to the prorogation.
“The possibility of Parliament being prorogued was beginning to be raised by serious voices, as I recall, in June and July of 2019. And we were quite worried about it, I took it very seriously […] I had a mole inside the political decision-making apparatus of the Conservative Party, who got message to me that prorogation was going to take place. And this was four or five days before it actually happened, and that information was interesting, but didn’t have a profound impact on our strategy, because I’d seen much earlier in the summer that this was a realistic possibility.”
It often seems to me like we rarely hear about Johnson’s prorogation attempt anymore, which upon reflection might be a little surprising, given the amount of media and legal attention, emotive argumentation, and political capital the issue devoured at the time. Maugham shared my surprise.
“It was a really striking moment for me, actually, at the time, when the Prime Minister shutting down the only democratically elected part of Government because it was inconvenient to him, the most shockingly autocratic act that a supposed democrat could commit, was both-sided by the media. So the BBC had on people saying ‘it’s totally fine to shut down the House of Commons, nothing to see here’. And there weren’t many commentators who had the moral courage to say that which was obviously true, which was that this is an affront to democracy.
“And I don’t want to get terribly Orwellian about any of this, but I did think at the time […] if the BBC would ‘both sides’ this, what would they not ‘both sides’? What issue, what thing could the Prime Minister do that the BBC would not struggle to defend? And it made me very conscious, I think, of how fragile our democracy is.
“When I was contemplating before it happened the possibility of prorogation, I thought it would be the end of democracy, because a prime minister who could set aside Parliament as inconvenient, and the courts not having jurisdiction — which is what all the clever people were saying, that a court would not have the jurisdiction to undo the Prime Minister’s act – would mean that the day after a general election, the Prime Minister could prorogue Parliament, and only unprorogue it the day before the next general election. And what would be left, then, of parliamentary democracy?
“And in a way, the same impulse that caused people then to ‘both sides’ it, causes them now to treat it as being that which it was not. It causes them to treat it as just part and parcel of just the everyday run of the mill handling of politics, rather than a democratic outrage. And in a way, it should cause thoughtful people to ask that same question, which is […] is there anything that this Government could do that would cause the media to erupt in genuine outrage? A lot of serious political commentators have written weighty tomes on how democracies die, and the prorogation experience and in particular the reaction of broader civil society to the prorogation merits one of the longer chapters in an account of how democracy dies.”
An outspoken critic of Britain’s withdrawal from the EU, I ask Maugham whether he sees any domestic political will for reintegration into the EU at any point in the near future, perhaps, especially in the Labour Party.
“Yeah, I mean I understand why you ask that question, but it’s a little bit like that question ‘who do you want to succeed Keir Starmer as leader of the Labour Party?’ and there then follows a long list of people, none of whom you’ve ever heard of. It’s very difficult to imagine a world that no one is talking about, but that doesn’t mean that that world is unimaginable, it just means that someone needs to start talking about it. So the answer to your question is no, no one is talking about joining the single market as an EFTA state, but I can certainly see a world in which it begins to quickly acquire political resonance as we learn more about the realities of life outside the EU.”
Maugham’s Good Law Project isn’t only in the business of taking the government to task. This year the organisation has taken on the mantle of defending the rights of trans adolescents to begin medically transitioning. One of the key court cases has been Bell v Tavistock, which saw the High Court declare under 16s and some over 16s incapable of consenting to puberty blockers. The Court of Appeal recently overturned this decision. I asked Maugham how much damage this decision has done to Britain’s trans community.
“[The Bell decision] was actually not that significant. And it’s not that significant because the damage that Bell in the Divisional Court did wasn’t damage to the ability of trans adolescents to access puberty blockers, because they couldn’t access them through the NHS anyway. The damage that the decision of the Divisional Court did in Bell to the dignity of the trans community was to centre, in the place of notional independence and authority, the views of a bunch of cranks.
“You know, the experts that the Divisional Court centred were not experts in the term in which any lawyer understands experts, i.e. people coming from a general body of medical expertise. They sat outside that general body of medical expertise. And by centring that crank view at the heart of the debate, in a way which resonated with a regrettably transphobic media, the Divisional Court did enormous damage. The Court of Appeal is enormously critical of the Divisional Court for that exercise, and that ought to be enough.
“But it only actually is enough if newspapers report that the Court of Appeal is as critical as it was of the Divisional Court. And they haven’t, they’ve ignored the decision of the Court of Appeal […] It’s just been ignored. And so the cultural damage the Divisional Court did, I regret to say, has survived the decision of the Court of Appeal.”
Over the past few decades, Maugham has risen from Durham law undergraduate to QC, the apex of a lawyer’s career. I ended our discussion by asking him how Durham law students can make the most of their degree.
“To students who want to become good lawyers, I would say the process of becoming a lawyer is a process in culturalisation, which means it’s not really about what you learn about the law, it’s about learning to think like a lawyer thinks. And the best way to learn how to think like a good lawyer thinks is actually not to bury your head in the textbooks, it’s to read the cases. Try and read a case every day, and make sure to understand everything that is said in that case, make sure you understand the bit in the beginning where the advocates talk about the arguments, make sure you understand everything in the judgement. And that is a much, much, much better way to become a great lawyer than reading textbooks.”
Law students, take note.
Image: Jolyon Maugham