Recalling Magna Carta
The battle between the Telegraph and Sir Philip Green has interesting implications for the class struggle, writes Mike Macnair
On February 8 Sir Philip Green dropped the lawsuit against The Daily Telegraph which had prevented him being named as the target of various “#MeToo” and related allegations, and agreed to pay the Telegraph’s costs. The immediate background to this decision was that in October Lord Hain used parliamentary privilege to name Green.
The Telegraph promptly used its new freedom to report quite a lot of the detail of the allegations against Green, who has faced new demands for the withdrawal of his knighthood. Second time of asking here: in 2016 MPs voted for it to be withdrawn over the BHS pension fund scandal.
It is important to say at the outset that we do not know whether these allegations are true and should not assume that they are. It should also be said that the allegations, as reported, are at the lower end of the spectrum. Green is not accused of actual rape or extorting sexual favours. He is accused of low-grade indecent assaults (groping), sexually suggestive speech, property damage and racist language to put down an employee.
This is not to say that such conduct would be acceptable; it is just to say that, unless more and worse stories emerge, these alleged pieces of misconduct do not look like serious crimes - what Peter Kyle MP calls “monstrous acts which must have inflicted unimaginable fear into his subordinates”. Rather, if true, they so far look like managerial sleaze and bullying of a regrettably normal kind - albeit usually targeted against junior, rather than senior, staff.
Managerial sleaze and bullying is normal.1 It can be said very briefly that there is no real remedy against it, but there are two main ways of countering it. The first involves as much transparency as possible - but there can be and is groping and bullying in many workplaces. The second is rotation of office. As long as managerial authority is acquired as a permanent right, the gradual growth of the holder’s sense of entitlement will inevitably lead to forms of abuse - financial misconduct, as well as sleaze and bullying at the expense of junior staff. Term limits for managers could therefore reduce the problem - but this is hardly likely to happen under capitalism.
The much more fundamental political point is that we cannot know whether the allegations are true; and it is probable that we will never be able to know. The reason for this is that complainants have been induced to settle for money on the basis of non-disclosure agreements (NDAs). Even if the NDAs were overturned, and assuming the allegations weretrue, it is most unlikely that criminal prosecutions or even civil proceedings could succeed. The reason is that the process of making the deals ‘contaminates’ the testimony, which witnesses might, in theory, be able to give in court proceedings.
We made this point previously in relation to the Socialist Workers Party’s ‘Delta’ scandal - by ‘trying’ a member over allegations of serious criminal misconduct, you could end up denying the victim justice.
The converse of this is, in fact, part of the ground of Green’s claim to enforce the NDAs against the Telegraph (which, it seems, was not party to them). If the truth of the allegations cannot be tried, there is no possibility of Green proving they are false. The result is that they hang over him permanently and so the damage done by publication therefore (it can be argued) outweighs any public interest. The answer to this is straightforward: it was Green’s choice to impose NDAs which has led tothis situation.
Agreed settlements of disputes can perfectly legitimately, in many cases, keep the dispute out of the public view. Take, for example, divorce proceedings arising from sexual incompatibility; or a boundary dispute affecting only two neighbours. But there is also a large class of cases where it is severely problematic for disputes to be settled privately. Suppose that the issue is whether an industrialist’s pollution is poisoning people: private settlement has the effect that more people will be poisoned before the matter finally comes to light. So, too, if someone is a habitual bad driver, it is undesirable that a private settlement should conceal the fact (the law in this case allows public prosecution in spite of any private settlement).
English lawused to provide against this problem, at least in some cases. Crimes were before 1967 divided into three classes: treasons, felonies and misdemeanours. Felonies were serious crimes, which originally attracted capital punishment; misdemeanours were less serious. ‘Compounding a felony’ - settling a felony claim out of court in order to conceal it - was itself a misdemeanour; and so was ‘misprision’ - concealment of treasons or felonies.
The 1967 Criminal Law Act abolished the distinction between felonies and misdemeanours, and with it ‘misprision of felony’. It also abolished ‘compounding a felony’ and replaced both it and ‘misprision’ with a new crime of accepting money - other than “reasonable compensation” - for non-disclosure of evidence of a “relevant offence”: now defined as treason, murder or crimes carrying more than five years’ imprisonment.
The Criminal Law Act was not grounded on serious thought about which matters ought to be capable of private settlement, and which ought to be disclosed, so that the risk the defendant may pose to other members of the public can be dealt with.
Are the allegations against Green such that they ought to be disclosed? I think that the answer probably is yes. To the extent that they are allegations of sexual assault, it is familiar that sexual predators tend to be persistent offenders; so that publicity permits corroboration of allegations. Now it is quite likely (on the limited evidence of what has been reported) that Green is not such a person. But this takes us back to the problem of ‘no opportunity to disprove the smear’. That is, this is a type of allegation which should be tried in the open and decided one way or another; not one which should be, to use the old language, compounded.
Selling and denying
More generally, the use of superior resources to pay for lawyers - thus creating “inequality of arms”2 and thereby forcing the other side to settle - has the same effect: the truth of the facts cannot practically be tried.
We need not weep for Green over the consequences of his lawyers’ choices. But the same issue confronts the left in a different form. We are facing a coordinated campaign of malicious defamation around the false allegation that anti-Zionism amounts to anti-Semitism, which means that the Labour Party is riddled with the latter. Where the Labour apparat attempts to throw people out on these charges, it has often been unable to prove them, and so has used other excuses for expulsion or suspension. But the disciplinary proceedings in the Labour Party are entirely private, and there is no sanction for making a false allegation. And it is impossible for those targeted by the ‘anti-Semitism’ smear campaign to proceed in the public courts for defamation, because the costs make the remedy inaccessible to ordinary mortals and skew the proceedings in favour of those with the deepest pockets.
Magna Carta chapter 29 is still in force on the statute book. In the official translation it reads:
No freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we not pass upon him, nor [condemn him,] but by lawful judgment of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right.3
The final sentence refers to King John’s practice of taking money from individual litigants to speed up their claims, or hamper those of their opponents. The practice is very visible in the records of the central royal courts for King John’s reign, so he seems not to have been ashamed of it. But ‘selling justice’ was generally understood to be wrong, and judges who took bribes to sell, deny or delay justice or right could be sacked and imprisoned (spectacularly in 1290, when there was a large purge), or later impeached.
Paying the king or a judge to get your way in litigation is an obvious means of using wealth to stifle justice. But spending lots of money on lawyers is a way to achieve the same result less directly. There is little study of the topic, because what is spent is private, but what there is suggests that it works.4
The effect of the ‘free market in legal services’ is thus, precisely, that Elizabeth II sells and denies justice in violation of the Magna Carta, through franchising this sale and denial to the legal profession. Also there is not “equality of arms” for the purposes of European Convention on Human Rights, article 6 (guaranteeing the right to a fair trial).
We might ask why, given that it is obvious that radical inequality of resources can prevent a fair trial, the European Court of Human Rights has been so cautious on the issue. The answer is that to question the right to outspend your opponent is to call into question a fundamental principle of the modern capitalist constitution.
Limits on legal fees and fixed-fee rules were normal before relatively recent times. But capital can only rule as such through concentrations of money wealth. Unlike slaveowners or feudal lords, capitalists do not have legal rights to favourable discrimination. They can only be favoured as a class, and hence control the subordinate classes, if money as such can buy favourable discrimination.
It follows that taking the promise of Magna Carta chapter 29 seriously - and hence the abolition of the free market in legal services and subjecting the bar and solicitors to a real ‘cab-rank rule’ (one in which their fees were fixed by regulation, like cabbies, and at levels which would make access to justice affordable) - would be one of the elements appropriate to a Marxist minimum programme for the overthrow of the class rule of capital.
1. See JA Ariza-Montes et al, ‘Workplace bullying among managers: a multifactorial perspective and understanding’ International Journal of Environmental Research and Public Health vol 11.↩
2. In the language of the European Court of Human Rights (though reading this rather more widely than the court does): Guide on article 6 of the European Convention on Human Rights: right to a fair trial (civil limb): www.echr.coe.int/Documents/Guide_Art_6_ENG.pdf (2018).↩
3. www.legislation.gov.uk/aep/Edw1cc1929/25/9/section/XXIX. This is from the 1297 version - the first which was formally a ‘statute’.↩
4. Eg, PJ Wahlbeck, ‘The development of a legal rule’ in Law and Society Review vol 32 (1998) discusses the prior literature and finds in a survey of US federal public nuisance appeals empirical correlations between financial resources plus lawyer experience and the outcome. For England, H Genn (Hard bargaining Oxford 1987) finds that inequality of party resources significantly affects outcome in out-of-court settlements.↩