It always seems to be reported as a surprise judgement when a court declares that “the law is the law”. Back in 2017, the low-cost airline Ryanair persisted in its attempts to insist that its practice of giving all its European cabin staff Irish contracts meant that it need not comply with the local laws of the country where they were actually based. Whoever was advising them clearly had not bothered to sit down and study the law as it stands before the company was dragged before the European Court of Justice. Yes, the Rome Convention allowed employers to employ staff on contracts that complied with the laws of the EU country where the company had its head office – in this case Ireland – but such a practice still entitled their staff actually based in Belgium the right to claim their “statutory rights” in Belgium.
Now we have another “surprise judgement” (see below) in the case of the Asda staff class action in the UK, where the Court of Appeal (surprise, surprise) has declared that female shop workers could compare themselves with the mainly male Asda warehouse workers. The existence of “equivalent worth” as a basis for equal pay has been kicking around in the annals of UK law for almost 50 years. So why the amazement when it is seemingly rediscovered by an appeals court?
A whole industry seems to exist to hold back (or confuse) everyone’s knowledge of the law, so that it can be resold to us at some stage as a revelation. But this is such a well-established and resilient practice that we should remember it every time we try to establish our legal position. “Buyer beware” applies equally to purchasing legal services as it does to purchasing a second-hand car. As anyone who tries to sue a lawyer learns very quickly, the problem is very few lawyers will be prepared to take such a case and, even if they do, the judiciary are predisposed to save them in order to protect the system.
Justice is a fragile and ironic phenomenon that is closely akin, in its self-contradictions, to the concept of democracy. Hitler’s propaganda minister Goebbels once said of democracy that it “gives its deadly enemies the means by which it is destroyed”. Laws are often well-constructed – not because of politicians or the justice system, but because somewhere, out of sight to most of us, a group of faceless civil servants are at work devising and refining them. If laws are allowed to be shaped and enforced according to “political will” or “public opinion”, then they become too vulnerable to self-interest or mere ignorance. That is why the seemingly fairer system of “common” law applied in the UK and USA actually falls short of the more rigid “civil law” system operating on the European continent, although – in the end – both systems remain deeply flawed.
Of course, the biggest irony at the heart of this question is that civilised life as we know it can only exist because of the law. But law works best when it is never put to the ultimate test. Steer carefully through it by avoiding litigation and the chances are you will come out relatively unscathed. If any state authority wishes to penalise a corporate entity – as many of them do in respect to social media and internet companies – then they will always find a convenient badly drafted law like the GDPR to allow them to do it. As for the rest, maybe we should take the advice once given to me by a friend as we walked through a notorious area of New York. He was spelling out the unwritten rules for strangers walking the streets of that city – never stop to look at a map, always look like you know where you are going, and never stare into someone’s eyes. Then he looked up and added, “and cross the street when you feel uncomfortable”. I also looked up at that moment and could not be sure why we were crossing, so, after a few seconds, I asked him what had been the threat. He pointed back to where a policeman stood next to his police vehicle on the opposite side of the street. “Don’t even give them the chance,” he muttered, and we walked on.