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.
And this thread of incoherent wibble.
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:
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.
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.
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.
Great piece Helen and I do fear that respect for the profession may reach the lows of Universities and that would be no good for anyone!
There’s a lot of pungent truth in this, but I think that the attrition of professional reputation through some individuals’ infatuation with their own social media performance isn’t the entire explanation in this instance.
First, with many honourable exceptions, deadlines, laziness and ignorance combine to lead journalists to fail to consult experts who are accessible and willing to talk to them at the drop of a tweet or direct message, and without dragging their soapbox into the room with them.
Second, this subject involves two areas of law: gender recognition and equality law, and devolved and reserved matters as between the Parliament of Scotland at Holyrood and the UK Parliament at Westminster. Both of these involve complex and technical statutory provisions. Both are also highly inflammatory topics, with hyoer-partisans on all sides. In the law of gender recognition and equality, a significant judgment in the Court of Session (For Women Scotland 2) only days before the final legislative stage of the Gender Recognition Reform Bill at Holyrood, was not debated or digested in that process. As regards the devolution settlement, the UK government’s power of veto over a Holyrood Bill is a virgin power, exercised for the first time here. So there is new material in territory where in any event (some) fools rush in and wiser people tread with caution. Especially those who already have entrenched and familiar views on either of the legal issues, or on Westminster and its personalities, or have form for cluelessness and incoherence in their work.
Thirdly, there is some discernible foregrounding of men and elbowing aside of women at work here, as Dr Michael Foran, the University of Glasgow academic whose recent work appears to have been influential on the government’s decision to exercise the s35 veto, has himself pointed out. On 14 January 2023 he tweeted
“ ... it really should be said that women have been raising these issues for years and don’t seem to have been taken seriously. I recognise that I brought some devolution aspects to the table but really I’ve not said much new here at all”
This was in reply to a thread started by a human rights lawyer and prolific commentator, also male, who had referenced Michael Foran’s work and said
“I’m looking for commentary on the Scottish gender recognition bill. ... Anything else out there?”
As anyone who had been paying any attention to the subject would know, there was a great deal “out there”, much of it written by women policy analysts and lawyers. QED