Americans will complain endlessly about their ambulance-chaser culture. For their part, the French legal system personifies a certain tedious rigidity in contracts that bleeds over into everyday life.

The rule of lawyers is about the eternal tension between obeying common rules for a common good, and the tool becoming the master: the rules choking-off growth or warping normal human social relations.

In both of these metrics, the rule of lawyers seems to have reached a grim new milestone lately in England: the Next judgement.

Next is a high street clothing chain. They sell the sort of garments that will never go out of fashion, because they were never in fashion. Sensible beige trousers. Warm grey jumpers. Bundles of black socks by the seven or the ten. Underwear elastic enough to take an expanding midriff. Historically, Next targeted men aged 30 – 50 who had better things to do than look for clothes. They have over 400 branches. Every British town of some size will contain a Next.

Within that store, the staff, we now know, will be around 79 per cent female.

Meanwhile, when the sensible jumpers first fall off their crate from Bangladesh or Indonesia, into Next’s network of warehouses, the staff loading them in or out will be, we now know, around 53 per cent male.

We know these ratios so precisely because they were at the centre of an employment tribunal case.

At the start of September, a class action lawsuit by some 6,000 present and former Next employees came to its conclusion. The tribunal decided that the pay differential between the warehouse workers and the shop workers was institutionally sexist. Therefore, the tribunal declared, the shop workers —who were paid around 92p an hour less —would be entitled to compensation, back-dated for many years.

Sexism had happened: on this the court was clear. Yet that sexism still remained remarkably hard to define or pin down.

For instance, the employment tribunal never suggested that any one person at Next had been sexist. And, with 47 per cent of warehouse workers themselves being women, there was obviously no question about women having been deliberately excluded from the slightly higher wages available in the warehouse. Indeed, the judgement noted, several women who worked behind the tills had been offered warehouse jobs —but they’d turned them down because they would not enjoy the work. ‘You’d have to pay me a lot more,’ as one put it.

Rather than look at anything specific, the tribunal relied on the idea that there was something inherently sexist in paying different rates for these two different roles. Sexism was an emergent property — and they were here to knock it back in its evil box.

For their part, Next’s lawyers made all the obvious counterarguments: that they were paying the warehouse staff more because that was what the market would support. That they were regularly oversubscribed in the shops, but regularly under-subscribed in the warehouses. Warehouse work was harder, they said: it involved lugging boxes around noisy out-of-town depots in unheated concrete storerooms. Almost anyone would prefer a job in a shop: to be downtown, around people, and half a rung up the ladder of social prestige.

But the court was not satisfied. After all, as the tribunal pointed out, the definition of ‘equal value’ had been codified by the Equality Act of 2010. Under this, two jobs are said to be ‘equal’ if they can be said by an assessor to attain a similar ‘grade’ on a series of comparisons. These comparisons be items like ‘physical stress’, ‘emotional stress’, ‘hours’, or ’need to take responsibility’.

This is no thought experiment. The tribunal literally employed an assessor, who spoke to several workers in both jobs, and came up with 14 different categories of comparison, and graded each worker on an A to F scale.

To explain all the ways in which this methodology is wrong might take as long as the 60-page judgement itself. Suffice it to say that the ‘categories’ are entirely made-up, their assessment is only the view of one minor bureaucrat, the idea that 14 different categories would all hold exactly equal weight is logically absurd, and the notion that a job must be weighed by against some cosmic scale of arduousness before the payroll team can move in is so laughable as to be not at all funny. The tribunal also noted that they had investigated Next’s finances and found that it had been ‘making sufficient profits to pay the higher wage’. A statement so chilling it’s hilarious.

Yet here we are. In England, a bad employment law has met the liberalisation of ‘ambulance chasing’ lawyers over the past thirty years. The lawsuits are being orchestrated by a notorious firm called Leigh Day, who look for class actions in which to insert themselves. They have similar suits ongoing for big supermarkets like TESCO.  The net result is that Next will likely close several stores next year, to help clear the £30 million debt the suit imposes.

This concatenation ought to set alarm bells ringing in industry and in politics. But it won’t. Because the truth is that the managerial state has long ago set the central principle above any bad outcomes it produces.

Just last year the council of Britain’s second largest city, Birmingham, declared bankruptcy, after losing its own ‘equal pay claim’ worth up to £760 million. This time, it was the binmen, who in exchange for wrangling week-old chicken carcasses in-between lungfuls of diesel fumes, had been paid more than the workers in air-conditioned offices.

Despite its obvious lunacy, the Birmingham bankruptcy has been treated as a minor story, one locality’s foibles, rather than a ticking time bomb under the national economy. In the common mind, no value has been created or destroyed. Rather, it has been shifted from one person to another.

Musing on what she’d do with her £6,000 payout, one of the Next case’s lead plaintiffs, Helen Scarsbrook, decided she’d ‘probably pay off the car, or go on a nice holiday’. The understanding here is that a good lawsuit could be like a good lottery win—a big amount of money pooling into your hands from lots of small payments into a common pot. A windfall. Something we might all wish for. The fact that Birmingham has had to disband its symphony orchestra, or that Next might sack other workers to make up the shortfall, barely registers. In this cosmology, value has not been created or destroyed, merely transferred.

‘A good lawsuit could be like a good lottery win—a big amount of money pooling into your hands from lots of small payments into a common pot’

A more sophisticated version of this line of thought comes in what economists call Coaseian bargaining. Ronald Coase pioneered the maths of compensation. Wherever there’s an ‘externality’, as Coase said—something that creates a privatised profit, but a commonly-felt loss—the winner can just compensate the losers. The example often given is pollution: my factory spews out gunk. I pay a tax (or maybe lose a lawsuit), and the citizens of the town get money for having to live with soot-stained walls and a little more lung disease. This is cheaper than closing down the factory, so the factory owner supports it. The townsfolk are compensated so they support it. Everyone’s lot has been uplifted, and a surplus of value is created. 

Coase’s logic folds neatly into the logic of modern Britain. It is a theory that sits entirely inside of the neoliberal economics that began to find its place with Thatcher.

Yet it is also one that fits well with a socialist world view: in that an ‘externality’ is often something slightly abstract—‘pollution’, ‘noise’, ‘crime’—that affects an abstract set of people, like ‘society’, making it a prime target for redistributive world view. Implicit in Coase seems to be that taxes go up, and ‘equity’ goes in.

There were noble intentions behind the empowerment of lawyers to take on more and more active roles in smoothing the frictions of English life.  John Major first empowered the ambulance chasers with the Contingent Fee Agreement, in 1995. Back then, it was meant to be a fashionable innovation to empower consumers and bear down on miscreants. Individuals would trade in the market, and where the market failed, they could trade in the courts.

But like the famous case of Jarndyce v Jarndyce in Dickens’ satire of the London Chancery courts, Bleak House, the system has long since run on autopilot, and no one now attached to it still even recalls those noble origins.

In Britain, there is an increasing sense that the law is not simply the final recourse for social disputes among citizens—but their first resort. On a train into London recently, a man was persistently playing his phone aloud to the carriage. I asked him to stop. After some back and forth, he did. Then I asked an employee of the rail company, who had been sat opposite watching this scene play out, whether Greater Anglia Rail took a position on low level disturbance, now a regular feature of commuting. He only shrugged, said he worked in engineering: not his department. Then, a middle-aged woman opposite struck up. The rail company have special teams for this sort of thing, she said, because there’s always a risk of violence.

I pointed out to her that I had just taken the risk. And that, while I appreciated there was at least some danger, surely it would be more dangerous, in the long term, if no one ever enforced proper English norms amongst themselves? But she only repeated her point more slowly. They need professional teams, she said, or else it’s a potential liability. 

In this mindset, the whole of modern Britain dangles precariously on the ligature of law. It is the law that settles the most trivial of disputes. And it is the law that compensates citizens for their most petty of inconveniences. Hard luck, or reasonable differences don’t come into it. A culprit must be found, and a transfer must be made.

So, it’s oddly fitting that Britain is now ruled over by the most lawyerly Prime Minister since Spencer Perceval. Sir Keir Starmer’s previous job was as Director of Public Prosecutions, the head of the national prosecutor, the Crown Prosecution Service. He is a lifelong human rights lawyer, who has used his pro bono time to fight against the death penalty for murderers in Jamaica.

It is a bad omen that the Next verdict has landed in his first few months in office. 

Much has been made of the quest to detect an ideology, a central thread, a ‘Starmerism’ in Starmer.  Most attempts have come up blank. But to the extent that Starmer has a political mission at all, the best observers have pointed to an unshakeable belief in the power of the law to bring ‘justice’ to the people. ‘Justice’ in this case meaning ‘social justice’—not simply the prosecution of the guilty, but the levelling-down, and re-moulding of society into something closer to the progressive ideal. 

In his heart, Starmer is the train guard in hi-vis who has to come through to tell the miscreant to stop blaring his phone. He is the ambulance chaser who uses tort to do what Next won’t do in a free market: raise wages beyond the market price. He has a civil service mentality, overlaid onto a lawyer mentality: and in that, Starmer is the New Man, and Britain’s new direction, incarnate.

The law that drove the Next suit, and the dozens of suits that now flow from its precedent, is the 2010 Equality Act, enacted by his New Labour predecessors in their final months in office. It divides society into ‘protected characteristics’: race, gender, sexual orientation, nationality. In that sense, it is a perfect socialist instrument.

Where there is an observed difference in outcome, the Equality Act requires that it be flattened. In other words, the Act first posits a blank slate view of humanity, then works backwards to ask ‘why doesn’t reality match up to this blank slate world view?’, then immediately ascribes malice, then demands compensation. The destructive power of the Act has been immense. But in the Change Labour era, a sequel is now in the offing.

Already, there is talk of a Race Equality Bill, which will force companies to publish data on the payment of their employees, stratified by race. Any income gaps between, say Japanese and Pakistanis, will leave the door open to yet more class actions. This is not an accident—it is a deliberate policy to let civil lawsuits do through neoliberalism what the state has neither the nerve nor the funds to do itself: bring about ‘race equity’.

Ever more, Starmer will follow his dominant mode. The instrument of law will increasingly be used to compensate for the third order consequences of bad law—be it by deleting free speech to stop complaints about social housing policies which prioritise incomers over natives. Or be it in the recently unveiled rental laws—which will ban landlords from evicting tenants in most circumstances—designed to compensate for a failing housing market that makes even the basics of life unaffordable.

In short, we are at the start of a new era of stilted social relations, endless jobsworths protecting themselves from liability, grindingly rigid hiring rules, untold chilling effects, and general sclerosis in the arteries of capitalism.

‘The more numerous the laws, the more corrupt the state,’ said Tacitus. To which I would add: the more numerous the lawyers, the more inured the people.

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