Maggie Out?
In September 2019 just after the Supreme Court’s decision on whether the then government’s decision to prorogue Parliament was lawful (it wasn’t), a prolific commentator on legal affairs, a KC no less, wrote this:
“As a legal matter, if the Supreme Court says it is the law it is the law. Saying “this is the law” is what it is the Supreme Court’s job to do.”
Well done.
He went on:
“Johnson and Cummings and the other moral detritus they drag in with them have no mandate to question the Supreme Court’s decision.”
The abusive language is unfortunate. But the sentiment is correct. When a court rules, everyone – not just the parties concerned – has to accept the judgment. They can appeal – if it is a lower court – but once it has reached the highest court in the land, that’s it.
There is something else which is required: not to impugn the good faith of the judges or attack their independence or the role they play in our system. Individual judges cannot answer back. It is one of the fundamental duties of the Justice Secretary to uphold judicial independence (as do all Ministers) and to ensure that the judiciary, whether as a whole, or its individual members, are not attacked for doing their job.
When the High Court ruled in November 2016 that Parliament must vote on whether to trigger Article 50 of the EU’s Constitution and start the process of leaving, the fury at the judges by those who disagreed led to an infamous newspaper headline: “Enemies of the People” coupled with photos of the three judges and details of their private life and sexuality, wholly unnecessary information designed to cast prejudice on them and their judgment. The then Justice Secretary and Lord Chancellor, Liz Truss, after some delay, made a statement about the independence of the judiciary but did not condemn in terms the serious and unjustified attacks on the judges. It was an episode which did her no credit at all. Nor was it the only example of the governments from 2016 onwards taking a rather pick’n’mix approach to what laws and judgments they were willing to follow. And a less than whole-hearted defence of the vital importance of the rule of law and judicial independence. It did them no credit either.
Fast forward to now. Following the Supreme Court’s judgment on Wednesday in the For Women Scotland (“FWS“) appeal (a judgment which has led to a furious reaction by those upset – apparently – that it has not removed any of their existing legal rights), there have been far too many commentators seeking to undermine – or wilfully misinterpret – that decision. A clear guide to what it does say can be found here. In part, this has been because many likely did not realise – or fully appreciate – that, before the Supreme Court, the Scottish Government stated expressly that TW were not women, unless they had a GRC. It was agreed by all parties that the legal issue was about TW who did have a GRC. Or, if they did, they thought – or hoped – that if FWS lost, the distinction between those with a GRC and those without would, in practice, disappear as impractical to enforce. And so they would get by the back door what has been wanted all along: self-ID and the effective disappearance of single sex spaces, associations and services for women. (It is worth reminding everyone at this point that Stonewall started campaigning for the removal of all single sex exemptions in the Equality Act in 2015. This would have given all men access to women – their spaces, their services, their associations – and control over their very sense of self, of security, privacy and dignity.) The Supreme Court’s judgment has now stopped that in its tracks and has exposed the deception inherent in the Scottish Government’s approach. The Supreme Court has stated that a GRC has no effect on the Equality Act. That is precisely what the Scottish government argued in Holyrood when it was passing the Gender Recognition Reform law. It is precisely what it argued before the Scottish courts in response to the Section 35 Order preventing its enactment into law. The fact that it then argued the opposite before the Supreme Court rather suggests that its earlier arguments were no more than a “bait and switch” tactic of a type used by fraudsters since time immemorial.
The very same commentator who seemed to know in 2019 what the Supreme Court’s job was and how it must not be undermined wrote after this judgment that:
“something very bad, delegitimising, happened in the Supreme Court.”
“Delegitimising”: this is no way for a KC to write just because he does not like the judgment. It is pretty disgraceful, frankly, especially from someone who describes himself as having an “unblemished record” (carefully omitting to mention that he was rebuked by a High Court judge for publishing material from a witness statement in breach of the rules and had to apologise to a judge in a criminal trial for some tweets he sent out.) Yesterday morning he said that the court was “hubristic, reckless or bigoted” though he was not that bothered about “the precise moral quality of their turpitude“. How big of him. How histrionic. How very fem….(no, not going there!)
Far worse is the behaviour of Maggie Chapman, a member of the Scottish Parliament, and Deputy Convenor of its Equalities, Human Rights and Civil Justice Committee. At a rally in Aberdeen over the weekend, she said that she saw “bigotry, prejudice and hatred” coming from the Supreme Court.
This is not – as some have sought to argue – her exercising her free speech. It is a qualified right which can be restricted by law, necessary in a democratic society and done for one of the purposes set out in Article 10(2) of the European Convention of Human Rights (“ECHR“). One of those purposes is the maintenance of the authority and impartiality of the judiciary. It is plainly necessary in a democratic society that elected representatives observe and promote the rule of law. This is not just necessary. But ought to be obvious. (Though given that Ms Chapman, despite a degree in zoology from Edinburgh University, stated in reference to the Gender Recognition Reform Bill that she did not know her chromosomes so could not be certain of her sex, perhaps an understanding of the ECHR is too much to expect.)
But she should know that as an MSP, she is under a specific legal obligation to uphold the independence of the judiciary under the Judiciary and Courts (Scotland) Act 2008 – section 1(1)(d). Making wholly unjustified and potentially libellous comments like this are irresponsible and a breach of her obligations as an MSP. The Faculty of Advocates has written a stinging letter to her and the Committee’s Chair calling her behaviour “reprehensible“.
It is particularly reprehensible because of two aggravating factors:
(1) Many of those demonstrating against the judgment have not been shy about expressing threats and a wish for violence against those they blame. There have been placards with pictures of nooses, references to “witch burning”, and a desire to see people dead and so on. Responsible politicians should not be using language designed or likely to inflame those who feel aggrieved. They specifically should not be doing so when so many of those makings such comments and threats are usually men and the targets are almost invariably women. (Two of the judges who wrote the Supreme Court’s judgment were women: Lady Simler and Lady Rose of Colmworth). It is notable that while there has been condemnation of the defacing of statues (including an American homophobic slur painted on Millicent Fawcett’s statue) during London’s weekend rally, there has been none (*) of the placards wishing death on women, not even from the London Mayor, who has seemingly forgotten to Have a Word and say “maaate….”. As he rightly said back in 2022, “Violence against women and girls starts with words.” (Disappointment with a judgment is one thing. But there has been something very dark in it too. On top of the misogyny inherent in any belief system which thinks men know best what women are, there has also been the misogyny and hatred displayed in the viciousness of the attacks on women: the references to TERFS being better off dead, the drawings of nooses, the demands to “shit” on women’s heads. If this were not enough, women have then been blamed for those attacks, the “look what you me made me do” claim of abusers everywhere. It is Triple “A” misogyny. It has been happening in real life – not in a fictional drama – but has not, oddly, led to any sort of urgent political response, condemnation and hand-wringing calls for action.)
(2) Second, she has a role on the Equalities, Human Rights and Civil Justice Committee which will have to consider the judgment’s implications for public policy in Scotland. That Committee is due to meet FWS, the successful appellants. How can they, how can anyone have any confidence in her to do her job fairly, to ensure the judgment is implemented properly given her intemperate and abusive language? She is now obviously conflicted given her expressed views. She should consider her position urgently and, at a very minimum, publicly withdraw her remarks and apologise to the court. Instead she has doubled down. Dundee University might also reflect on whether she is really suitable to be its Rector.
Whatever comments are being made in private, the Justice Secretary for the UK and the Justice Secretary in Scotland should publicly, without delay, be making it crystal clear to all – Parliamentarians included – that these sorts of contemptuous attacks on the Supreme Court are intolerable and must stop. We should expect no less from a UK government led by a lawyer and former DPP.
The Supreme Court has done its job. It has stated what the law is. It is now for the rest of us to follow it. Not misinterpret it. Or undermine it.
(*)Since writing this, Stephen Morgan, Education Minister, criticised on Times Radio the language and placards as “completely and utterly unacceptable“.
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