Contract - the Modern Battleground
Doing battle without clobbering
Contracts are the way we formalise:
agreements we have with, and
promises we make to
This, theoretically, prevents us from having to wear protective armour, get gangs together, and clobber each other.
How are contracts useful to ordinary citizens?
Contracts In Employment
For most of us, it is usual to consider contracts in the context of labour relations. We have contracts with employers which stipulate hours of work, remuneration, and what happens if we are naughty or fall ill or retire. This is good. Things are clear and the understandings are supposedly mutually shared. For professionals and semi-professionals this usually works fine.
For unskilled and semi-skilled labour, problems arise as corporations look to make massive savings by unilaterally cutting conditions in swathes of standardised contracts.
How often is industrial action triggered by an employer’s unilateral disregard for a previously negotiated agreement?
And how often does this lead to strikes? Less so now than in the 70s, but the industrial action reaction is still at the forefront of much of trade union thinking.
There shouldn’t be a need for strikes. They are, at best, a clumsy weapon and very rarely win the support of corporate-media-orchestrated public opinion. The outcomes of industrial negotiations should always result in bullet-proof, properly legally advised contracts.
Where employers renege on deals, they should be whipped into court and thrashed with fines and/or imprisonment and restitution.
Where “loopholes” are found by employers in previously agreed contracts, the advising lawyers should themselves be whipped into court.
Contracts In Elections
It may be unusual to consider “contracts” in the context of “elections”, but why? How often have voters bemoaned the fact that promises made at election time never see the light of day once the promisors are in power?
Election manifestos should be re-defined in law as contracts.
Where political parties or individual politicians renege on manifesto commitments, they too should be whipped into court and thrashed with fines and/or imprisonment and restitution.
In the olden days, we used to have to carry arms or rely on local robber barons for protection and/or restitution. Thankfully, certainly from my point of view, we don’t have to carry swords anymore. There is a gradually evolving body of law and enforcement to which, theoretically at least, I can turn for protection and/or restitution.
The problem is - this body of law and enforcement is largely a highly price-restricted retail market.
And I, and the huge majority of my fellow citizens, am/are inevitably too under-funded when it comes to seeking legal redress. Legal recourse is usually seen as entering a high-stakes casino - a gamble, and losing such a gamble for most UK citizens would mean financial ruin.
So, what options are open to us?
How can we redress this imbalance?
Combatting the Legal Monopoly
Flooding the market
In a “free market”, if something is over-priced the competition is supposed to set in, flood the market, and drag the price down. Retail law is not, of course, a free market. It is a monopoly tightly controlled by privilege and price-fixing.
The primary source of higher ranking lawyers and judges is privately educated school boys with access to private funds. Quite apart from the fact that it is their privately inculcated ideas and sensibilities which pervade the views of their profession, it also means that “the product” will always be in short supply. The very exclusivity of the supply side creates a “seller’s market” when it comes to flogging their services. There simply aren’t enough lawyers and judges to deal with all the problem areas out there, and lawyers are free to charge obscenely inflated fees.
The answer would be to “flood the market” with fully qualified lawyers such that competition and “free market forces” costs down.
How can under-funded plebs achieve this?
The Co-operative Movement
Largely by accident, The Co-operative Group (the UK’s largest co-op, the one that lost the bank to hedge funds) came up with the beginnings of a solution.
They established Co-operative Legal Services, a law company. It just so happens that you don’t have to be a lawyer to set up a law company. You just need to hire and/or train lawyers to do the work.
Of course, the CLS remit is fairly narrow. It is there primarily to serve Group members in the pursuit of conveyancing and probate services, and it does this largely by farming much out its work to existing law practices with more reasonable rates achieved through “bulk buying”.
Where they (and the rest of the co-operative movement) have missed the boat (again) is in not pooling resources such that all co-ops and their members can share in the funding and utilisation of the service. If this were done, economies of scale would allow for much more support for the training of would-be lawyers. No longer need the profession be dominated by private school boys. With central resourcing the gates would be opened to many more, probably more capable, people. Even poor people (a frightening thought for some) might be able to consider a career in law.
Strikes should always be the very last resort. They are very blunt weapons. They more often than not affect innocent bystanders and virtually never win the mainstream media publicity campaigns. And in fact, many corporations see strikes as useful cost-saving exercises. On top of all this, strikes tend to have the added effect of alienating non-involved citizens from the entire Labour movement, and this can cost elections.
Learning from the co-operative movement, TUs can and should pool resources to build up a massive law practice specialising in employment law and related matters. They should be dragging employers into court and suing them rather than organising strikes.
By establishing a centralised TU legal service specialised in contract law, avoidance of duplication and economies of scale could generate a “war chest” to match the war chests of the corporations and the privileged.
Utilising either a broader based Co-operative Legal Services or the TU equivalent (or, dare I say it, a combination of both) would leave the way open even for unwealthy individuals or community groups to take on big-budget legal departments.
Whether these are government and political party bureaucracies or corporate juggernauts, flooding the market and busting the legal monopoly would have them thinking a lot more carefully about their commitments under contract.
© 2019 Deacon Martin