Westminster hacks & bush lawyers

Why we're all drowning in rivers of bullshit

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As anyone who hasn’t been living under a rock knows, on Monday HMGov decided to use Section 35 of the Scotland Act 1998 to “veto” the SNP’s Gender Recognition Reform Bill (Scotland) before royal assent.

On Wednesday — at their request — I wrote a legal explainer on this for CapX, the wonkish magazine owned by think-tank the Centre for Policy Studies. While I made my views on the merits clear (I think gender identity is pseudoscientific woo-woo), the law is explained impartially. This could go either way when it comes up for judicial review.

Yes, not on anyone’s side, but always fair. If I have a brand, it’s this, borne of the lawyer’s tendency to see both sides of an argument.

If you want to understand the legal situation and how it relates to devolved and reserved matters, do read that piece.

I have other fish to fry here.

Sometimes, expertise is necessary

By way of background, I am one of a small number of lawyers qualified in both English and Scots law. In 2012, I worked for the Office of the Solicitor to the Scottish Parliament (when Alex Salmond was First Minister). My speciality was the Gender Recognition Act (UK) 2004, which I wrote about for my professional association’s journal. Hence CapX’s request.

However, there are many, many Scots lawyers out there who can explain how the Scotland Act works. It’s a relatively simple matter to call a large Scottish law firm, ask for a public law specialist, and pay for an hour of a solicitor’s time.

If you’re too poor for that (or a complete skinflint), you can call one of the Scottish law schools and ask for a public law academic. They’ll talk to you for free, and be desperate to go on the record, too (universities like the free publicity).

No Westminster hacks bothered to do this.

First Twitter, and then the press, lit up with glib, superficial takes, like this one.

James Ball @jamesrbuk

I absolutely cannot understand why – *purely politically* – Sunak has intervened on the Scottish gender recognition act. Seems destined to cause him running headaches for months now, while before it just didn’t need to be near his radar.

And this thread of incoherent wibble.

Robert Peston @Peston

In blocking the Scottish Government's Gender Recognition Reform Bill, Rishi Sunak has simultaneously made a statement of "thus far and no further" for devolution and for transgender rights. Which defines him as a more conservative Conservative than is perhaps his public...

Okay, I hear you say, Twitter is full of dumb shit. Ignore it.

Which means The New Statesman has no excuse for this piece of crap, while The Independent should apologise for this floater.

I’m not going to dredge every journalistic Scotland Act turd out of the Westminster sewer, but you get the idea.

And just in case you think I’m in the tank for one side with this, here’s former Lord Chancellor Lord Falconer making a pro-Gender Recognition Reform Bill and anti-Section 35 use case — carefully and thoughtfully — on Twitter, no less. It is possible not to be a bellend on the Hellsite.

Start here:

Charlie Falconer @LordCFalconer

The s35 Statement of Reasons has now been published. It identifies 3 sets of reasons why the Sec of State considers the GRR Bill would have an adverse effect on the operation of reserved matter law namely equal opportunities.

What made it even worse was that Lord Hope of Craighead — probably the most eminent living Scots lawyer, now retired from the Supreme Court and so able to speak to the press — was happy to talk.

He got one interview. Mind you, it’s good. Watch it.

‘Ah, a bush lawyer’

Australians have an unkind phrase to describe people who wade into a legal dispute in this way, or who turn up in court as a self-represented ‘party litigant’ when they can actually afford representation. They’re called ‘bush lawyers’, and the activity in which they indulge, ‘bush lawyering’.

I may have introduced this term to both the English and Scottish Bar.

Barbara Rich @BarbaraRich_law

@VictoriaPeckham @JonnElledge @jamesrbuk All over my timeline are lazy, superficial takes from prolific commentators casting a first glance at either or both the gender/sex or devolved/reserved matters issues, blithely unaware of years of commentary and analysis, much of it by women, by which they might be informed

Barbara Rich @BarbaraRich_law

@ElviraMaddigan @VictoriaPeckham @JonnElledge @jamesrbuk I’ve just seen @_HelenDale use the phrase “bush lawyering” to describe these glib, uninformed takes from Westminster hacks and am going to appropriate it for future use

It used to be the case that when laymen did things like take sides in debates about Scots public law when they’d struggle to locate Scotland on a map, experts would correct them, and we could all go on our merry way.

I even remember graphics like this getting around. There were equivalents for doctors, too.

It’s no longer possible to tweet this at people, because experts have so frequently soiled themselves in public

However, it’s no longer possible for experts to play the respect mah authoriteh game, Cartman-style.

Loss of public respect

This is in large part because academics, lawyers, and public health professionals have been repeatedly—and (importantly) publicly—wrong about a lot in the last ten years.

Political scientist Philip Tetlock has long had a particular bugbear with economic forecasting, which is wrong so frequently he thinks it worthless. Historically, he especially hated how economists sailed on their merry way (often after panicking markets) and nonetheless got to do the rounds of the studios over and over again. Almost inevitably, they continued to be wrong.

This still goes on, of course. Nothing will happen to Robert Peston and James Ball and Ian Dunt and all the rest of the clueless idiots above. And, arguably, that’s to be expected — they’re only journalists, and journalists aren’t very bright.

But academics (especially) and many lawyers and doctors have followed journalists off the same cliff, and unlike in the pre-internet world Tetlock described, ordinary people can now check and keep score. It probably didn’t matter much when Joe Public only wrote journalists off as partisan hacks. It does matter when Joe Public writes off academics, lawyers, and doctors.

Often (not always), these people know a thing or two.

And that’s before you get to an eminent KC bashing a fox to death and boasting about it on Twitter, an NHS consultant getting a cartoonist sacked for mocking her (also on Twitter), and academics by the thousand talking utter nonsense for all the world to see while bullying and abusing ordinary members of the public who have the temerity to disagree with them.

It’s no exaggeration to say the rest of civilisation has watched academics, lawyers, and medical professionals behave absolutely disgracefully on social media while being wrong in an easily-documented way.

This means we’re all now drowning in rivers of bullshit, it’s genuinely difficult to know when something is true or real, and only two outlets thought it worthwhile to make a telephone call to an expert in Scots law before wading in and opining about it.

Once public respect is lost, it’s close to impossible to win it back.

Good times.