Skip to content Skip to sidebar Skip to footer

They are still protesting

Last October I wrote this article – The Arc of History – about the protests by women in Afghanistan, in Iran and in Ukraine about what was happening to them in their countries.

All three countries have rather dropped out of the news in recent months. But the cruelty (often a particularly sexual cruelty) to – and oppression – inflicted on them continues and gets worse. In Iran, the authorities have deliberately aimed at faces, often blinding young women in one or both eyes. In Afghanistan women have been publicly whipped in the street. Women in Ukraine have had their children kidnapped and sent to Russia, a war crime for which the ICC have issued arrest warrants against Putin and Maria Alekseyevna Lvova-Belova, Commissioner for Children’s Rights in Russia.

Despite all this and worse, women, many of them young – and some men – are continuing to protest and defy the authorities responsible.

  • In Iran earlier this month, its Supreme Leader and the police’s commander threatened women with arrest if they took off their hijabs. The response was a lot of women publicly going out without their hijabs, often accompanied by male friends and relatives. One heartening aspect is the increasing number of men who have joined women in protesting against these diktats and fighting back against the morality police. Dishearteningly, however, months of protests have not loosened the regime’s grip on power nor its insistence on controlling its female population in this way or its brutality to those it arrests – including the summary hanging of those it deems guilty, after grotesquely unjust trials.
  • In Afghanistan, women continue to protest (see the picture above from a filmed protest in Kabul earlier this month) against their total obliteration from public life and from any ability to earn a living or have an education. The cruelty inflicted is only matched by the hypocrisy of Taliban leaders, many of whom are sending their own daughters out of the country to get the education they are denied at home.

    There is not much to be hopeful about. Perhaps the only conclusions we can draw so far are these: –
  • Dictatorships willing to behave oppressively and caring little for censure, whether domestic or foreign, can keep going for a very long time indeed.
  • Rights, once won or granted, can be taken away or lost. We must never be complacent – even in the West – especially about rights for women, which always seem to be something which have to be negotiated for, as if their grant was an immense favour to women and not something they are entitled to as of right.
  • Those who continue to protest, at great personal cost to themselves and their families, are immensely courageous. “We will fight. We will die. But we will take back our rights.” is what those women in Kabul are chanting.

    Whatever we can do to support them, however little it may be, we should. Even if it is no more than reminding ourselves and others that they are still there, still protesting, and letting them know that they have not been forgotten. It is not much, frankly. But it is better than silence.

Leave a comment

12 Good Men

In 2020 both Holyrood and Westminster toyed with the idea of suspending or otherwise restricting trials. Those proposals did not go ahead. Now the Scottish government is proposing a pilot of single judge trials for rape cases. The reasoning behind this proposal is set out here. I find such proposals troubling. The article below is what I wrote in June 2020 on the value of jury trials.

I loved Latin at school. My award for Latin poetry recital is carefully preserved and I remain mildly hopeful that, one day, it might even prove useful. Poetry aside, it was then seen as necessary to become a lawyer. For the first few years of practice those Latin sayings encapsulating legal rules became firmly lodged in my head. Then they were no longer compulsory, plain clear English becoming the rule. Quite right. But one saying seems particularly apt these days: Ex turpi causa non oritur actio – no-one can make a claim based on their own dishonourable conduct. More widely, it expresses the idea – or, perhaps, the hope – that people, governments even, should not be able to take advantage of the damage caused by their failings to do that which they would not otherwise get away with.

There is now a very real danger of this happening with trial by jury, a practice which goes back – in its essence – to Magna Carta. 

Juries have not always been loved. Blair tried to curb jury trials in 2003 and had to back down, Tories opposing him, their then spokesman saying: “Jury trial is an essential safeguard to ensuring respect for the criminal justice system.” Juries are not always loved by the legal establishment either, including some judges, those who think that the law is far too important and complicated an issue for ordinary persons, who are simply not clever enough to understand. It uses the complexity beloved by lawyers to justify keeping the whole process within this charmed, closed circle, a legal elite. It is an argument often heard in relation to fraud trials, conveniently forgetting that sniffing out dishonesty does not need a degree, that it is often some of the apparently cleverest people – formally anyway – who fall for some of the biggest conmen around. Understanding people is not a profession but something that all can do. It is precisely the introduction of the ordinary person’s view, the wisdom of a small crowd, which is the jury’s great strength and its value. To adapt an infamous saying: when it comes to guilt and innocence, you can have too much of experts.

Lawyers and judges can become so inured to what they see and deal with every day that they risk becoming cynical and world weary. As Chesterton put it: “the horrible thing about all legal officials, even the best….all judges, magistrates, barristers, detectives, and policemen is ……simply that they have got used to it”. What is just another case for a lawyer or judge is a potentially frightening and life-changing experience for the individuals involved: defendants, victims and witnesses alike. Juries are one of the best ways, for all their faults, of making sure that ordinary people are truly involved in one of the most critical functions of the state. They provide legitimacy, credibility and finality. And that group of 12 disappears at the end of a case, never to reappear, whereas judges and magistrates are around for a long time and hard to remove, no matter how perverse they may be.

There are other benefits too: the ability to tell the authorities when they are being oppressive (Ponting) – a real life version of the small boy telling the Emperor he has no clothes – and, of particular value these days, the involvement of minority groups often ignored by other parts of the justice system. The 2017 Lammy Review found that, by contrast with practically every other part of the justice and prison system, juries were the one part where there was no evidence of unfair or discriminatory treatment by BAME juries or to BAME defendants. The way juries had to operate (see page 34) – debate, persuasion, a collective decision rather than by one person – was one of the key reasons for this.

The current problems are long-standing and lie elsewhere: a 25% cut in real terms funding since 2010 for the Ministry of Justice; other cuts to legal aid and police funding; restricting sitting days to save money so that between 25 – 40% of Crown courts are unused; 260 court buildings sold in recent years, for instance. This has led to a backlog of 37,400 Crown Court cases in December 2019 (rising to 40,500 by end May), with trials happening well over a year, in some cases, as much as three, after charges are brought. Justice is being delayed mightily. It is not quite as bad as in 2014 when the backlog was ca.50,000 cases. But still disgraceful. The situation is even worse for cases heard by magistrates: in March the backlog was 395,600 rising to 483,700 by mid-May. Justice – imprisonment: these are key functions of the state. For the state to preside over their degrading is for it to fail at one of its most fundamental duties. It is demolition by deliberate neglect. 

None of this backlog and the consequent harm to defendants, victims and witnesses has been caused by Covid-19. The latter has not helped, of course, but only trials longer than 3 days have been postponed during the lockdown. No – the vast backlog and delays are a direct consequence of years of under-funding by the government. So if the government wanted to resolve such problems, it knows what to do: increase funding, reopen closed courts, have them sitting 5 days a week, build Nightingale courts etc.

Why the concern then? When Nicola Sturgeon suggested in April that jury trials in Scotland be suspended for up to 18 months, there was a furious reaction and not just from the usual legal suspects. A former Lord Chancellor and famously no lover of experts, Michael Gove, described it as “deeply concerning” and asked “is it wise to take this position on jury trials.” A very good question indeed. The Scottish government retreated. On 4 May, the Justice Minister, Chris Philps, told the Justice Select Committee: “There is categorically no question at all, under any circumstances, of the right to jury trial being removed. It is a fundamental right. It goes back centuries in our history, and it will never be removed at all.

That was then. Now we find the English Lord Chancellor suggesting just this. In order to create capacity, he is proposing either reducing juries to 7 or taking away the right to a jury trial for offences with a possible prison sentence of 2 years or more, replacing this with trial by a judge and 2 magistrates – the very same magistrates unable to deal with their current workload. (Apparently, hugely increasing their workload will increase capacity, which is why he favours this option.) Legislation is to be passed by 21 July and implemented by September.

  • He says these are the only choices. This is a false choice. 
  • He says such a change will be temporary only. Of course it will, like all those other “temporary” changes which become permanent when the immediate emergency has passed. When trial by jury is salami-sliced in this way, the pressure will be to continue further, not reverse the changes. 
  • He claims that this is necessary to increase “capacity” without taking the obvious steps to do so and without explaining how an already overburdened magistracy can help.
  • He provides no explanation of whether defendants will have an automatic right to appeal against convictions nor what the other effects of this change will be.

This is an old practice done by those who know the price of everything but the value of nothing: starve public services of what they need to operate effectively, then wield the axe by claiming they are no longer effective. It is being done dishonestly by pretending that the trauma of Covid-19 necessitates this. It is being done quickly and with little time for consultation, scrutiny or proper consideration of the implications.

Easy to think of this as special pleading by lawyers. It isn’t. Juries are one of the best, one of the oldest ways of involving ordinary people in one of the most important decisions there is: 12 life experiences, perspectives, opinions, voices able to assess the honesty, motives and actions of another, as we do every single day. Justice by the citizen is justice for the citizen. Trial by our peers is far too important for us all to be so casually dismissed out of expediency and to cover up the gross failings of the government itself.

It was Lenin who reportedly said: “Never let a serious crisis go to waste.” (Or, possibly, Macchiavelli.) A cynic or a revolutionary seem to be the guiding lights of this government. Is there anyone to ask: “Is this wise?

Those who view justice with the eyes of a bean counter are using Covid to destroy one of the institutions that works, that really does value the opinions of real people rather than simply uses “the People” as a prop for politicians’ egos. We are seeing its slow demolition, first by neglect, then by malice. Dishonourable indeed.

Leave a comment

WHY THIS?

Naomi Cunningham, a well-known barrister specialising in equality law, wrote an interesting post on her personal blog “A Blog of One’s Own” in April 2021 — Why This? In it she considers why, of all the debates about rights, gender reform is —

the one proposed change in the law that is — in many circles — simply unacceptable to oppose?

Why is this? And why has this issue has become such an important cause for her. It has led me to ask this too. This is my response.

The gender debate seems to me to combine two elements: belief and a fight about power. By gender debate I don’t mean the existence of gender dysphoria. What its cause is and how to treat it is a matter for experts and those with such a condition. People with it should be helped in every way possible to live full and fulfilling lives. No, what interests me is the way this has been conflated into and tied to a wider gender ideology — one which thinks that all have a gender which is different to sex, that it should be the way in which men and women are categorised and that this should be determined solely by an individual’s decision without any regard to anything or anyone else.

A new religion?

The desire for a belief system providing simple answers and clear moral certainties is eternal. GK Chesterton put it well when he said —

When men choose not to believe in God, they do not thereafter believe in nothing, they then become capable of believing in anything.

That impulse is a strong one, even in people and societies considering themselves secular and irreligious.

Believing that a man can turn into a woman simply by saying so (self-ID) has many of the elements of a quasi-religious belief system:

·       Belief is what matters not evidence, however scientific or strong.

·       The desire and willingness to reorder society or an important part of it on radically different lines.

·       It is Manichaean: the believers, the good guys, and those who don’t, the bad guys and can be called names (TERFS as the new heretics).

·       It is, much like all religions, very binary. The irony of a belief system apparently rooted in a love of diversity unable to accept the richness of human experience but determined to force transmen and transwomen into pre-existing categories is delicious.

·       Much like religion, it hates such ironies being pointed out or being laughed at.

·       The simple unchallengeable catechism: to be chanted but never explained. “Trans rights are human rights”, for instance. Yes, they are. One can equally say “Men’s rights are human rights”. Or — more daringly — “Women’s rights are human rights”.

So what. The questions are what are those rights? And how are they to be balanced against others’ rights.

An even more challenging question might be: are all demands rights? The unspoken assumption behind this catechism is that everything that is wanted (at least by this group) is a human right. This is an assumption which needs unpicking and more consideration than it is given. The apparent simplicity of the language, couched as it is as something self-evidently good, is designed both to obscure this and make any challenge difficult, wicked even.

·       So it is with the other half of the catechism: “Transwomen are women”. Transwomen are men who believe they ought to be women, that they are somehow in the wrong body and who want to live as if they were women. Or — to coin a phrase — “Transwomen are transwomen”. If this were how the issue was described, the debate would be very different. That it is not — through the deliberate choice of those promulgating the TWAW mantra — is key.

·       The warm feeling of the self-righteous convinced they are right together with the sense of belonging, even the sense of persecution if someone dares disagree.

·       The casting out of the heretics (being “cancelled”, even if sometimes overstated, is this century’s equivalent of Amish shunning).

·       The manipulation of language and the way some things cannot be said because they cause, allegedly, hurt and offence. (Let’s leave aside for now the question of whether hurt and offence should be forbidden.) This is the new blasphemy, cloaked in the language of politeness. But “misgendering” is not just about simple politeness. It requires the speaker to accept the belief system of the person so described. It is like asking an atheist or a Jew to accept the tenets of Christianity in how he or she sees the world and describes their own experiences, including when it conflicts with the evidence of their own eyes. It is asking them to lie. This is about power. And about a lack of respect, contempt even, for those with different views.

·       The use of violent language and, in some cases, justification of violence against unbelievers. This may not be by all those supporting self-ID but the fact that there is a sub-set of such supporters (usually male) willing to use violent language, threats and, on occasions, violent or threatening behaviour against women (mostly) should trouble the advocates of self-ID more than it appears to. Rather like other 20th century belief systems, an element of it is about violence and power and control. It is troubling that it may appeal because of these features, not in spite of them.

·       The increasing focus on children and ensuring that both their understanding and their experiences are shoehorned into a very particular understanding of human development, to the detriment or exclusion of any other understanding, including those based on science. Affirmation as Confirmation. It is rather reminiscent of the Jesuit motto about being given a child until 7 and having them for life.

·       There is even a priesthood of sorts. Established charities purporting to speak for all, granting blessings on those who follow the faith and indulgences, in return for cash, and increasingly intolerant of dissenters (see the Mermaids legal action against LGBA).

Who / Whom

It is a fight about power. The way the gender debate has been crafted seems designed to allow men to do what they have been doing for centuries: telling women who they are, how they should behave, what they can say and think. It allows them to exercise power over women in the most fundamental sense by saying that it is men — not women — who get to determine where the category of “woman” begins and ends and thereby what her physical boundaries can be. Self-ID — especially by a man as a woman — undermines (a) the idea that women and girls should have boundaries and decide for themselves what those are; and (b) the dictum — “No means No”.

But it is not just this. Men claiming to be women and thereby claiming access to women-only spaces pose a potential threat to women in the way that women claiming to be men and in men’s spaces do not. This is not just about definitions. It is about the use to which men’s greater physical power over women can be put, about the violence, often the sexual violence that frequently results from that.

TWaW or TWaTW

The fact that the debate centres around whether transwomen are women as opposed to how they can live as women is critical. If the issue were described as “TWaTW” it would become very much easier to think about what accommodations are needed — and by whom they should be made — to enable trans people to live full and fulfilled lives. What is interesting is why this has not been done, why the debate has not been about this but about (largely) the redefinition of “woman”. There is virtually no discussion about the redefinition of “man” to accommodate transmen. Nor any discussion about what accommodations men should make, whether for transmen or transwomen retaining male bodies (by all accounts the vast majority of them). That this is so is key to the way the debate has developed.

It avoids accepting — or even pointing out — that transwomen are men with male bodies who feel that they are women. It avoids considering the implications of transwomen having the male strength which male puberty gives them, something which cannot be undone no matter what changes are made to outward appearances (including surgical intervention). It avoids considering how such male bodied people might be accommodated in male spaces, in male sport, in male prisons, how men should seek to be inclusive, how transwomen can be protected from attack or violence from men and so on. Instead, the entirety of the debate is about what women should be forced to do and accept, how women must be inclusive and be made to be so, if they disagree. Attempts to exclude for good reasons — safeguarding — are described and dismissed as middle-class gatekeeping by a Scottish legislator. [1] It feels as if, at least for some, the whole point of the debate is to give men another excuse to control and bully women.

Can words hurt?

Look too at the offensive and abusive language which is often used against women who object or raise concerns: “bigots”, “TERFS”, “hate groups, “transphobia” (if you dare talk about women’s rights)and the threats of sexual or other violence. Vitriolic language is sometimes used by people on all sides of the debate. But there is something particularly threatening when men use violent language against women. They can — and have the power to — follow up on such threats. And often do. It is one reason why we have become more concerned about the use of such language and whether it is a sign of a propensity to commit domestic violence or abuse positions of power (see, the recent reports on misogyny within the police [2] and the recent convictions of two Metropolitan police officers for the use of such language about women, amongst others. [3]) (Vicious language used by women against men, while wholly wrong of course, does not usually or routinely have the same implications or create the same fears for men.) Violent language, threats of violence are used both to stop challenge and to punish those who dare to speak out.

Is it even a debate?

One consequence of the self-ID movement being a belief system based solely on a person’s feelings is that it makes it very hard to argue against it. Women’s groups marshal arguments, evidence and explanations of the legal consequences and it is all for naught. But as the late Christopher Hitchens put it:

You cannot reason a man out of what he hasn’t reasoned himself into.

It is no coincidence that it is to the law courts opponents have gone and that it is there that they have had some measure of success. [4] There arguments, reasoning and evidence matter. Beliefs do not. Or — rather — they are the start of the argument. Not the end of it.

The search for power and for power over others is at the heart of all politics and all conflict. It is often brutal and visceral and zero sum. That is why the combination of the language used and how the issue is described together with the imbalance in power between men and women make this such a difficult issue.

Why does it matter?

This is why it matters so much to many women. Why it matters to me. This strikes at the heart of who we are, who we can say we are and how we can live our lives. It goes to the very core of our identity. It goes to the heart of mine.

The language and structure of religion is very very familiar to me. The way it is used to support a world which limits a women’s ambitions is the world my parents grew up in and to an extent sought to escape from. I grew up in its shadow. I was given the tools, education and confidence to escape from it and do and be whatever I wanted. But I have also endured the sexual violence which men so often visit on women. When I was younger I was raped. I have not let it affect my life. Like many I did not report it. I could not bear to cause my family pain. I felt humiliated. I felt ashamed that I had allowed it to happen. I put it away in a box marked “unwanted memories”. It is not the only sexual assault I have had to endure — from groping to lewd language and indecent exposure. There is nothing special about this. Every woman I know has a similar story.

It is easy to say that identity and the risks of sexual violence are luxuries or unimportant, when so many are wondering how to feed / heat and house themselves. The accusation of triviality (Maslow’s Hierarchy of Needs is sometimes quoted) is a bit rich coming from political parties and lobby groups who have seemingly made this a legislative priority. It is apparently so vitally important that it must be pushed through at breakneck speed with little scrutiny but utterly unimportant when women want to talk about it.

But this ignores something fundamental. It was Paddy Ashdown, when High Representative for Bosnia-Herzegovina following the civil war, who pointed out that before the establishment of any democratic or other civil institutions, there needed first to be order and stability. Only then could the rest flourish.

A person’s identity and security in that identity are a bit like the order which a society needs before it can develop. They are essential to living any sort of good life. It is what growing up means — developing that identity and being comfortable in it, having it respected and understood by others and having the strength and resilience to deal with those seeking to undermine or harm it. Respect for women’s boundaries so that she is free to go about her life without having to worry about assault is essential. It is something men take for granted. Attacks on women’s identity, on what being a woman even means, on the very idea of boundaries undermine this. Women have had to fight so hard to be recognised as independent autonomous beings, to be able to act in ways men take for granted, to speak, to be listened to, to be seen as themselves not simply as the property of men or an adjunct to them or as those who are always expected to accommodate the wishes of others, to “be kind”, to be ‘inclusive”. And now we are being told that we are going to have to fight for this all over again because men, once again, are seeking to take away what is ours, what we have had to fight for — painfully — over decades.

What it used to be like

I started out as a barrister a decade before Naomi. I remember a time when male barristers would simply ignore women pupils, blank them, because they were of no consequence. Or treat them as ones to be persuaded into sex in return for vague promises of pupillage. I remember the condescension of the bank manager coming to my school to talk about finance and ask us if we’d seen coins, as if we’d come from an Austen novel. I remember my mother telling me of her sadness at not being allowed to go to university because that was “not the done thing” for girls when she was growing up. I remember being told by my Italian aunt not to boast about my A-level results because my male cousin, the same age as me, who had not done so well would feel bad. I remember being told that girls had to be womanly — wear pretty dresses and nice shoes and behave like a “lady”, whatever that meant. I remember the police at university advising women what to wear to avoid the risk of rape. I remember it being assumed that I must be a secretary working late — not the lawyer — when travelling home from the solicitor’s office where I learnt to be a litigator. I remember the boss appointing a male colleague to a more senior post without even opening it up for interview because he assumed that the man was more experienced and better for the role and I would not be interested, without asking me. I remember being at a meeting at the offices of a major fund manager and being told that there were no ladies’ loos on the executive suite because there were no women executives. The secretaries’ loos were in the basement.

Trivialities?

Maybe — but so indicative of a world which did not value women as it should have or tried to limit them to old-fashioned stereotypes. The world has changed since then. Not enough of course. A survey in my first in-house job showed that by every metric women were treated worse than men. 22 years later in my last full-time job I was the only senior woman in my department working full-time with a family. Women like me were still a rarity despite all the HR processes and equality talks. These changes did not come about naturally. They had to be fought for, often in the teeth of male resistance. I was of the generation which benefited hugely and had opportunities denied to previous female generations.

The turning point

Then in July 2021 I read the decision in the FDJ case [5] which said that it was legal to house a man, who felt he was a woman and had a gender recognition certificate, in a women’s prison despite him raping a woman prisoner, despite the risk of rape and despite the fear that this would cause women prisoners. That buried memory comes out of its box. In 2021, rape, the fear of it are an acceptable price for a woman to pay to accommodate a man’s feelings.

This is a human rights cause, apparently. It is bigoted to oppose it. The idea that a man who thinks he is a woman could be protected from attacks on him/her in a man’s prison with men doing the accommodating is not even up for discussion. [6]

The man in this case had a gender dysphoria diagnosis. But now a man’s right to change his gender — without any medical diagnosis, for any reason whatsoever — is to be made legal. In Scotland, if the Scottish government wins its case against the S.35 Order preventing it getting Royal assent. This right is to be granted to all men, even to those convicted of sex offences against women. All that matters are the man’s feelings, however unwarranted or malicious or frivolous or unjustifiable they may be. In 2022 in Scotland it is acceptable for a male sexual offender convicted of offences against girls and identifying as a woman, who attacks a man in a men’s prison, to be moved to a women’s prison. [7] Male prisoners must be kept safe. Women prisoners …. well, who cares? Or so official policy appears to be.

We are being told to agree to this to be inclusive, to be kind to others, to think of others first, to be accommodating, to avoid offence and hurt. We are told that all it takes to be women is to wear dresses, high heels and lipstick as if womanhood was merely a superficial costume to be put on and discarded at will. So-called progressives are behaving like my old-fashioned aunt. Women are being told to behave like good little girls again. If we don’t, we are verbally assaulted or threatened with physical assault, some of it in luridly sexually offensive ways. Or simply ignored or excluded.

No.

It is so tiresome, so wearying, so infuriating to have to go through this again, to be told that if we disagree or protest or ask about our needs, our rights, our demands, our boundaries, our concerns, the risks to us, we are being bigoted or selfish and that these are “not valid.

That is what I think is going on. That is why the debate about self-ID is so toxic and so important. Women are not being listened to. If it goes through, I fear that it will push back or eliminate many of the rights women have gained during my lifetime. I am seeing changes in attitudes already. I am seeing exemptions created specifically to permit women only spaces not being used for fear they will upset men. I am seeing inclusivity being used to exclude women from places they were previously free to treat as women-only. [8] It will affect not just me but my daughter — and her daughters too. That is why it matters to me.

Men with power bossing women around. This is a very old, very sour wine being offered in a new bottle.

Footnotes

[1] See what Karen Adams, MSP said about safeguarding during the debate in Holyrood on the Gender Recognition Reform Bill on 15 November: https://twitter.com/ForWomenScot/status/1592486669823139841?s=20&t=SDewjYoq7BmBca0HGsDvkg

[2] In October 2022 Dame Louise Casey’s interim report on misconduct in the Met following Sarah Everard’s murder was published — https://www.met.police.uk/police-forces/metropolitan-police/areas/about-us/about-the-met/bcr/baroness-casey-review/. The final Casey report on the Met was published in March 2023.

The report by the Chief Inspector of the Police on vetting, misconduct and misogyny in the police, published in November 2022 can be found here — https://www.justiceinspectorates.gov.uk/hmicfrs/publication-html/an-inspection-of-vetting-misconduct-and-misogyny-in-the-police-service/

[3] Two Metropolitan police officers (one current and one former) were convicted in September 2022 of sending grossly misogynistic and racist messages in a WhatsApp group shared with Wayne Couzens, the police officer convicted of the rape and murder of Sarah Everard in March 2021.

[4] The Forstater case is a prime example. See — https://assets.publishing.service.gov.uk/media/60c1cce1d3bf7f4bd9814e39/Maya_Forstater_v_CGD_Europe_and_others_UKEAT0105_20_JOJ.pdf

Another one is the case brought by For Women Scotland Limited against the Scottish government over its definition of woman for the purpose of the Gender Representation on Public Boards Act. See https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2022csih4.pdf

[5] See the High Court judgment — https://www.bailii.org/ew/cases/EWHC/Admin/2021/1746.html

[6] It is notable that the judgment does not consider whether it would be appropriate for a male bodied person who identified as a woman to be held in a men’s prison and, if so, in what circumstances.

[7] Katie Dolawoski, a male identifying as a woman, was convicted in 2018 of voyeurism and sexual assault of a girl and placed on the sex offenders’ register. In 2022 he attacked a man in Polmont jail and was transferred to the female estate at Cornton Vale. He has since been released; there are reports of him breaching the terms of his release on two occasions.

[8] One example is Hampstead Ponds in London. There are three: male, female and mixed. Transwomen insisted on being allowed to use the female ponds not the mixed ones. So now there is one male only pond and two mixed-sex ponds. There is no longer a female only pond. When women sought to use the male only pond to make a point, they were chased out.

Leave a comment

Let there be light

I came across this on social media. Stunning. A view across Ullswater from Glencoyne Head. It is painterly in the way it catches the light. You can imagine Turner painting such a view in this way.

The photographer is Paul Willson, an aspiring landscape photographer. 

One to watch.

View comment

The Cynic’s Dictionary

Sexual harassment: Boorish behaviour, unwanted by the target. Not to be confused with flirtation or courtship. Often perpetrated by people who have not recently looked in a mirror or who have forgotten their age or marital status.

Code of Conduct: Having some manners.

Witch-hunt: The process of making grown-ups accountable for their behaviour.

Addiction: Bad behaviour turned into an “illness”.

A clinic: A place where “addicts” go to, to hide from the media.

Abuse of power: Bullying. Soon to be classified as an “addiction

Inappropriate: Very popular word covering –

(1) Breaches of social etiquette, such as using fish knives to eat steaks.
(2) Language mistakes e.g. the use of “disinterested” to mean “uninterested”.
(3) Behaviour previously described as “wrong” or “illegal” or “criminal”.

Wrong: Description of behaviour which is either illegal or known by a majority to fall below widely accepted standards of decency. Implies responsibility by the person doing it. Now in high danger of falling into disuse.

Banter: Amusing social interaction between friends and/or colleagues. Not to be confused with bad or offensive language, which becomes “banter” when someone complains about it.

Apology: (1) A short form of words by which a person says sorry for behaviour which is “wrong” (see above). Traditionally starts with the 1st person singular and ends with the word “sorry”. In danger of falling into disuse.

(2) A long form of words by which someone appears to apologise while not in fact doing so. The non-apology apology requires focus on the victim’s reaction while also implying that it is both overegged and may not have happened.

There are many variations of this. Industries where bad behaviour is widespread are fond of adding to their apologies (variant no. (2)) a lengthy reference to all the good people in the industry; see Banking, Parliament, the Police, Journalism.

(3) The “Will this implausible excuse do?” apology: used by sulky teenagers everywhere. Now spreading to adults who should know better. See Diane Abbott who thought that saying offensive comments in a first draft was an adequate explanation rather than revelatory of what a person really thinks.

(4) Other popular excuses:

  • The culture has changed” – “I can’t get away with this anymore.
  • What might have been acceptable 10, 15 years ago” – “My lawyer drafted this.”
  • Parliament / the police / the CBI [insert organisation of choice] now needs to look at itself” – “Will this go away if we set up an inquiry and sack someone?”
  • Conduct needs to be improved” – “We must make sure not to get caught again.”
  • I have fallen below the high standards that we require of the [insert organisation of choice]“By the time anyone works out what this means this unfortunate affair will have been forgotten.”
  • I have reflected on my position” – “My wife / the PM / the Chief Whip has been shouting at me all weekend.”

Offence, the taking of: the best way of avoiding a debate and/or revealing you have no arguments. It is not actually necessary to be offended, just to say that you are.

The time for apologies is over (©Bob Diamond): The time when apologies (see “Apology (1))” should start.

Clarification: either

  • an admission that what you said before was completely untrue (in common parlance, a lie); or
  • an insistence that what you are saying now is what you have been saying all along, even though it is the complete opposite.

Shame: No known contemporary definition. Last heard of in the 1960’s.

We are going to consult on these proposals” – “We know they aren’t popular but we’re going to implement them anyway.”

We have not been consulted” – “We have not been agreed with”

Let me be clear” – “I’m going to be anything but.”

Full and frank disclosure” – “We don’t think they’ve got any more dirt than has already been published but are keeping our fingers crossed that nothing else comes out.”

A kangaroo court: any tribunal which decides something which the person under investigation disagrees with.

Any statement saying that an entity’s finances are fine and intended to reassure: usually the precursor to discovery of a fraud or insolvency.

An inquiry: A process by which an embarrassing story disappears from public view.

A report: What a person who had nothing to with the original events has to present to Parliament and/or the media many years later. See the Savile Inquiry Report. See also the forthcoming Grenfell, Post Office, blood contamination and Covid-19 reports.

Lawyers: The people who write inquiry reports. Also, the only people who read them.

Peerage: what the author of a report producing a satisfactory outcome for those commissioning it gets, entirely coincidentally, after the report has been finished.

Conclusions:  Usually written before the inquiry has heard any evidence.

Recommendations: What you find, if you read that far, in the Appendices to a report.

Working group: A group of people unable to avoid being tasked with the responsibility of coming up with suggestions as to how recommendations might be implemented.

The long grass: Where recommendations usually end up. See also “Inquiry

Lack of resources: The best reason yet invented for not implementing any difficult recommendations.

Lessons learned: Lessons which are never learned by those who need to learn them.

This must never happen again” – “This must never happen again during my term of office, at least not before I resign/retire and draw my gold-plated, index-linked, final salary pension or move onto an even more well-paid position.”

Whistleblowing: Something which is frequently talked about but not done anything like often enough. The equivalent of an “extreme sport” in some professions e.g. medicine, politics, finance.

Photo by Brett Jordan on unsplash.com

Leave a comment

The Scottish Question

Scotland is fast becoming to British politics what Ireland was in the 19th century: a country with endless, seemingly unresolvable, political grievances and issues defying easy answers. It has voted against independence but since 2007 has voted into power a party whose raison d’être this is. The current travails (today’s development a whistleblower about SNP finances claiming threats by the police, whose chief retired earlier than expected shortly before Sturgeon announced her resignation) are what almost inevitably happen when a party has been in power for too long with little effective opposition. This is something else which Scotland shares with Irish politics (the latter’s financial/political scandals over the years rival anything Westminster/the City has produced) and Irish society (see the various horrors resulting from the Irish Catholic church’s long stranglehold).

Now we have the latest Scottish issue – its legal challenge to the UK government’s S.35 Order under the Scotland Act (see here). Westminster is saying that the Scottish government has acted ultra vires and passed a Bill it has no legal power to do under the devolution settlement. Holyrood says that Westminster has misdirected itself on the Scotland Act and therefore has no legal basis for challenging what Holyrood has decided. The case raises interesting and novel legal issues; its political consequences are likely to make themselves felt in the run up to the next General Election.

What the challenge is not about

That a majority of MSPs voted for the Bill is not an argument against the S.35 Order. Rather, it is an essential condition precedent for it. The UK government cannot take action unless a Bill has been passed. Equally, that the Gender Recognition Reform (“GRR“) Bill’s provisions may, according to opinion polls, not be supported by the Scottish public is also irrelevant. The Bill’s popularity or otherwise – whether with MSPs or the public – is not what the case will be about.

What are the issues?

Two.

(1) Does the Bill impinge on matters reserved for Westminster under the Scotland Act? In particular, does it modify the law as it applies to the reserved matter of equal opportunities through the inter-relationship of the GRR Bill and the 2010 Equality Act?

(2) If it does, are there reasonable grounds for Westminster to believe that those modifications would have adverse effects on the law applying to equal opportunities?

If the answer to (1) is no there is, of course, no need to consider question (2). So Westminster has to win on both of these key points.

Who will win?

Only a fool would answer this, though a couple of retired Law Lords and Charlie Falconer have opined. The Scotland Act has not been tested in the courts; the interaction of the existing Gender Recognition Act and the Equality Act is not always clear, let alone the changes proposed by the GRR Bill. What tests will the courts apply to the Scottish government’s judicial review, especially in the context of a devolution settlement? The courts might well decide that any challenge to a decision passed by a democratically elected parliament should have to pass a high bar. Equally, if that parliament acts beyond its powers, how far need the court inquire into the reasonableness of the objections? The Scottish government has certainly made some interesting arguments: it says that effectively it can do whatever it wants in relation to gender reform, including repealing the GRA altogether in Scotland. This is an odd argument given that this would put the UK in breach of the ECHR (which would undoubtedly be ultra vires). It has also argued that Westminster should have told it how to amend the Bill during its passage so as to avoid a challenge, a curious position for a government so concerned with its own sovereignty and powers to adopt.

What next?

The Scottish courts will decide the issue first, though it is pretty much inevitable that the case will end up in the Supreme Court, whose President is Lord Reed, a Scottish judge. The court has taken a markedly more conservative approach in recent cases. For a comprehensive review of all aspects relating to the veto and challenge, there is an excellent research briefing lodged in the Parliamentary library here.

Timing

This is where it gets politically interesting. The case could take a year or more to get to a final resolution, in the run up to the next election. If the Scottish government loses how will this impact the SNP? Will it give them a boost – wicked Westminster interfering – or will it be seen another example of SNP overreach, imposing unpopular policies and wasting money? And how will this impact on Labour’s chances in Scotland? If the Scottish government wins, then it may raise the substantive issue of the balance between women’s rights and transgender rights in the run up to the election, something which Labour may not welcome, given Starmer’s recent comments on the issue. A defeat for Westminster would not be good for the Tories, of course, but they may not care if they are facing electoral defeat anyway.

Events

Then there is what is happening to the SNP. The spectacle of Scotland’s First Minister having to deny that the SNP is acting “in a criminal way” has a Nixonian feel. What else might happen? Will the current SNP government even be in place when the case is decided? Whatever the outcome, it will be an interesting case on devolution, the proper scope of judicial review and the workings of the Equality Act. Lawyers, if no-one else, are delighted at the prospect.

Photo by Alex Azabache on unsplash.com

Leave a comment

Side Passages

What to do with the side passage

 

Part 1

You know the one: not (seemingly) large enough to do anything useful in or with but a large enough space to allow storage of all sorts of “useful” stuff. At least that’s how it starts. The reality soon enough becomes storage of all kinds of stuff, most of it not useful at all and never found when needed. A mess. So some expand the house over it so that you can have more indoor storage. 

But I am here to tell you: forget that. This is part of your garden. It will, if you look at it, during different times of the day, get some sun. Shade too can be made beautiful. It can be made a place of joy. 

So this is what I did with the two side passages of our house. This first part relates to an unbelievably messy side passage, filled with all sorts of rubbish over many years. The passage is also sloped.

Clearing – of rubble, broken tools, rusted tools, bags of damp wood etc – filled a couple of skips. Then the very overgrown leylandii was dug up. What seemed dark and narrow actually turned out to be usefully wide and with much more light. It gets the morning sun which also warms the house wall.

 

At the bottom, two existing fruit trees remained: an apple and a pear tree. 

 

The old fence was taken down, slate tiles laid down and posts for trellis-style fencing put in.

 

I love trellis fencing. It lets in light; it is much easier to grow climbers up it (none of that faffing around with hooks and wires) and it provides views while giving some privacy. Two bin stores with green roofs were put in place and one solitary daphne – a magnificent winter-scented bush – planted.

 

A view from the top of the passage. Next door’s hydrangea are visible and, in the distance, the hills on the other side of the Duddon estuary.

 

At the top of the passage, screens were put to hide the heat pump and provide a storage place for pots and working area. The space between the screens turned out narrower than I planned so it is a bit of a squeeze, an informal way of making sure that I don’t become unnecessarily plump. Madame Alfred Carriere roses are planted in pots to grow up the screens and over a pergola on the next level up.

This rose is an absolute star. A climber, she needs space. Makes no fuss and flowers for ever. I have had her in flower as early as April and as late as December.

 

A view from above in summer 2021. A second daphne has been planted and grasses round the edge to catch the wind. 3 Gertrude Jekyll roses have been planted against the trellis. Alliums, agapanthus and alchemila mollis have been planted, along with euphorbia wulfenii and euphorbia mellifera.

 

Further up the side passage I have indulged my love of pots and created a Mediterranean corner with more Gertrude Jekyll roses, lemons, limes, oranges, fig trees and vines. The passage is sunny and sheltered and protected from the wind. Wisterias have also been planted in the hope that they will grow up a not very prepossessing wall.

 

The citrus – with one exception – have survived the worst a Lake District winter can do. The first winter I brought them all inside the house. Bizarrely, one of the lemon trees which seemed to be OK when I brought it out again did not survive. The second winter of 2022-23 I did not bring them in and they are all thriving. 

Similarly, the green roofs have thrived. I planted two aloe polyphylla. They are meant to be hardy but have not coped with the recent endless heavy rain.

 

The other big advantage of trellis fencing is that it allows smaller pots to be hung on it: ideal for showing off plants like auriculas, hostas and herbs

 

After all this hard work, the really hard work began: planting hundreds of tulips, alliums and spring bulbs for my first full spring. Would they come up? Would they be stolen by squirrels?

So you can imagine my delight when this was the result the following spring.

 

Even the wisteria put on a good show.

 

And here

So there you have it: a dark, unloved and unused corner turned into a useful, fruitful and beautiful space.

Leave a comment

The Way Home

The road rises up from Gawthwaite. It turns right, where the road from Ulverston joins it. The fells extend to right and left and ahead: nothing but bracken – reddish, auburn – and grass and sheep grazing. Ahead the hills of the western Lake District and everywhere sky. It was an intense blue this week: clear and fresh, warmed with spring sun, so welcome after days of relentless rain. 

Norman Nicholson wrote in Cloud on Black Combe:

The air clarifies. Rain has clocked off for the day.”

But whatever the weather, season or time of day, my spirits lift when I get to this stretch.

Ahead the road curves round, ready for the fast descent to Beanthwaite and Grizebeck.

Those hills: Black Combe, White Combe, the Whicham valley, the Duddon Estuary, the blues and purples, the clouds and, in the evening, the setting sun lighting up the sky along the Western coast.

The Duddon estuary, Black Combe behind, the Irish sea to the left – and somewhere in the distance – home.

Leave a comment

Ask Not For Whom The Bell Tolls

The best single essay on financial misbehaviour was written not by a journalist, academic or former trader, but by a novelist and nearly 30 years ago: The Deficit Millionaires by Julian Barnes, that most pointillist and French of English writers.  It is about Lloyds of London, the huge losses it suffered in the early 1990’s and how trusting Names slowly realised that their faith in a long-standing and well-established institution was utterly misplaced.  Lloyds had been around for ever.  It was part of the City’s furniture.  And it was insurance, after all.  How boring is that. How could anything possibly go wrong?

Well, with exquisite care and sympathy and the precision of a surgeon’s scalpel, Barnes shows us how.  And the story is a surprisingly familiar one.

  • A novel but complicated instrument designed to reduce risk but instead increasing it – the London Market Excess, or the spiral of reinsurance.  “Making a turn” – in the spiral – “was the easiest way to make money” one underwriter said.”
  • Greed – “If you are making a good living, if you have self-regulation, if you are outside exchange control, it’s human nature to get greedier and greedier and greedier”.
  • The market’s rapid expansion in a short period of time.  There was a near-ten-fold increase in the number of Names in 14 years, most of them trusting amateurs and all looking for insurance to underwrite.
  • A lack of due diligence, a suspension of critical faculties, a lack of scepticism coupled with an all too human willingness to believe in the promises of a no risk investment, all wrapped up in a flattering appeal to vanity.
  • A  deeply cynical – and possibly fraudulent – approach by the professionals to those who joined (“If God had not meant them to be sheared, he would not have made them sheep.”) 
  • Relaxation of the rules and lax monitoring of those that existed.
  • The undisclosed conflicts of interest – recruiters were paid a fee for each Name who joined.
  • A lack of transparency – it was Lloyds insiders rather than external members who got onto the best managed, low risk and least spivvy syndicates, justified by the then Chief Executive thus – “In any activity, the professionals will know more than the others.”
  • The breakdown of trust – what Barnes describes as the “tickle of fraud“, the realisation that the belief in “an honourable society, operating on trust, on shared values” was a chimera.  Or as one Name put it more bluntly, “You know, trust, honour, and then to find in such an august body a bunch of craven crooks”.
  • The realisation, far too late, that private warnings were given about some of the risks and unacceptable/criminal behaviour but these were ignored or not shared with those who ought to have been told.
  • The turning of blind eyes to unacceptable/negligent and/or criminal behaviour by a remarkable cast of shameless rogues during the 1980’s, even when the latter were the subject of legal action.
  • The failed institution’s repeated insistence that any problems were only the result of that well-worn old favourite: one or two rotten apples, despite one of those rotten apples being a Chairman of Lloyds.
  • The determined focus by new management only on its new procedures and processes and business plans for the future in the hope that a veil would be cast over the past, without any unseemly digging into it.
  • The eventual realisation by the institution that, as its deputy Chairman, put it, for the previous twenty years it had lacked “total integrity” and “strong government“.

Even the modern new building housing the salvaged and totemic Lutine Bell and built by a famous “name” architect is part of the story.

Barnes eloquently shows how an institution believed to be “the highest name of honesty“, seen as part of a certain sort of honourable Englishness, around for three hundred and five years, a stalwart of the City, selling its services around the world, as venerable as the Bank of England and thought to be as safe, came to be seen, harshly but accurately, as “a cesspit of dishonesty“.

If only this had been published more widely than in a US publication and, later, a book of essays.  If only we had paid more attention.  If only we had learnt the lessons that were there to be learnt.

Everything that went wrong in the run up to the near collapse of the Lloyds insurance market happened again two decades later and led to the financial crash 15 years ago, even with the benefit of external regulation and control.  Indeed, pretty much the same things happened in the lead into most financial scandals going back hundreds of years.

And, human nature being what it is, it’s a pretty safe bet that a version of all or some of these will happen the next time, may indeed be happening now.  As we can see from the collapse of Silicon Valley Bank and Credit Suisse. The same behaviours will once again come under the spotlight when the the next scandal becomes known, with its inevitable backing chorus.  

Why didn’t anyone see?  

Why did no-one ask the obvious questions?  

Why did no-one listen to the warnings?  

Why, oh why didn’t anyone act?

As Parliament’s Intelligence and Security Committee put it in a different context“it has been striking how some the issues which arose in [2005 and 2013] have also been seen as having been a factor in 2017.  We have previously made recommendations in these areas, yet they do not appear to have been acted on.”

Scepticism.  Curiosity.  Asking tough questions.  Learning lessons from previous events.  Their absence is a regular feature of many incidents of misconduct, many crises, both large and small.

But ultimately, in finance, as in other sectors, it is those old-fashioned concepts – trustworthiness, integrity, honourable dealing – which remain as essential in 2023, and years to come, as they have always been.

(This article was first published in January 2020. It has been updated as at April 2023.)

Leave a comment

And You Will Fix This How, Exactly?

Criminal justice, especially for sexual offences against women and girls, is much in the news lately. See Labour’s ad accusing the Prime Minister of being soft on child abusers, remarkable since Sunak has been PM less than 6 months, not enough time for a sex abuse case to be investigated let alone go to trial. Not to be outdone, during his election campaign, Scotland’s new First Minister, promised to uphold women’s rights. He showed how much he meant it by being photographed with a large pink heart and the look of one who, having forgotten his partner’s birthday and wedding anniversary, hopes that a vulgarly large card with the reduced price sticker removed will allow him back into the marital bed. It is also because of some recent cases and what they tell us about the reality.

The first is the sentencing of – and revelations about – a prolific offender such as David Carrick, a Met policeman. Aged 48, in February he pleaded guilty to 48 offences of rape and sexual assault since 2003 and was sentenced to a minimum of 30 years in prison. There were at least 5 earlier allegations – none of which were investigated, properly or at all – against him. The police are now investigating possible sexual offences he committed when he was 13. According to the judge’s sentencing remarks, he had a drunken abusive step-father, who was violent to his mother.

Meanwhile, in Scotland, Sean Hogg, aged 21, was sentenced to 270 hours community service after being convicted for the rape in 2013 of a 13 year old girl, after threatening her several times. 2022 Scottish sentencing guidelines state that custodial sentences should not be imposed on those under the age of 25, unless there is no alternative. This is based on scientific evidence suggesting that a person’s cognitive abilities do not fully mature until then. This and the need for rehabilitation are factors a judge can take into account, though he could have imposed a custodial sentence in this case. The sentence, widely criticised for its lenience, may yet be appealed by the Crown.

What might we learn from these two (and other similar) cases?

  1. The attack in the Hogg case was in 2018; sentencing 5 years later. This is not unexceptional. It shows a criminal justice system not fit for purpose.
  2. Children and young boys exposed to domestic violence and an absence of exemplary father figures are at risk of learning that this is acceptable behaviour and, in their turn, inflicting the violence they witness and/or are subject to on others. Repellent as the behaviour of men like Carrick is, it does not come from nowhere.
  3. If crimes and bad behaviour are overlooked or excused, on the grounds of youth and immaturity, young men will learn that they can behave badly, appallingly even, and get away with it. The conviction rate for rape is low enough as it is. If the cost of it is hours litter-picking, why not do it? And having done it once, do it again. Repeatedly. The same applies to older men too, in professions and respectable jobs, when allegations are not investigated or treated as not serious or otherwise excused. Or when minor sexual offences (indecent exposure, say) are treated as little more than a joke.
  4. Of course, maturity takes time to develop. A 17 year old is not the same as a 26 year old. But brain maturity is not the only factor which matters. Morality matters too. Even the young can learn the difference between right and wrong long before they are fully mature. Indeed, learning to do so and accepting that actions have consequences is part of that process. Societal norms should surely reinforce that. The young should be taught how to become mature not that immaturity is a get out of jail free card.
  5. But if this is wrong and the under 25’s cannot be expected to understand that raping a child is wrong or bear the rigours of prison, why are we expecting them to vote, get a job, get married, become parents or even MPs? Does immaturity only matter when it comes to doing wrong?
  6. Rehabilitation matters but justice for the victim matters first. Rape is an appalling crime, for any woman, any man and especially for a child. A 13-year old is a child. Quite apart from the fear, violence and pain, there are the physical and mental consequences, often lasting years. There is the shame and guilt and the attack on one’s very sense of self, and all this done to someone very much less mature than the attacker. The effect on her seems scarcely to be considered, as if having given evidence and her age being listed as an aggravating factor, she can be forgotten about. Why would anyone bother reporting such crimes if this is the likely result?
  7. 98% of all sexual attacks are committed by men. The overwhelming majority of victims are female. It is a very stark sexual divide and how society deals with it reveals more than anything else the value society places on women.

Labour has a point when it attacks the Tory government’s record on criminal justice, though the problems did not start in 2010. 

  • Serially feeble Ministers in charge. 
  • Too many incompetent police forces.
  • Inadequate forensic services.
  • A large backlog of cases because of insufficient courts, judges, prosecutors and defence barristers and growing larger.
  • Cases taking years – half a decade sometimes – to get to trial, a hideous burden on defendants, victims and witnesses.
  • Insufficient prison places, which judges now have to take into account when sentencing.
  • Inhumane prison conditions.
  • A run down probation service without the resources to do its job.
  • Little effective rehabilitation for prisoners and not much support for victims. 

What there is instead – in excess – is lots of politicians talking loudly about wanting to do “something” about (“halving” even! ©Keir Starmer) violence against women and girls, now handily reduced to the “VAWG” acronym. 

But unless Labour – or anyone else – clearly says it will spend the money – lots of it – to repair this dismal state of affairs (and how it will be raised), talk and an acronym is all women and girls can expect. No party anywhere in the UK has any interest in having an effective, timely system which catches criminals, brings them to justice and provides redress for the victims. At best they might pass more laws but without the resources to make them work. 

The real problem with Labour’s attacks – or any Tory counter-attacks – is not their unfairness, incoherence or multiple inaccuracies about investigations, trials and sentencing. It is that they are no more than “Tough on Crime” window-dressing, as the interviews of Lucy Powell and Emily Thornberry show (where was Steve Reed, Labour’s Shadow Justice Minister?). 

Empty bluster. Put that on a poster and you have the entire next election campaign for all parties summed up.

Leave a comment