Regardless of your view of the merits of the case, it feels remarkable that we have reached the point where a judge should ever have been given cause or opportunity to pronounce on whether or not someone’s political views were “not worthy of respect in a democratic society”.
Yet those were the words of Judge James Tayler in the 2019 judgment which propelled Maya Forstater to the front lines of the battle raging between trans activists and ‘gender-critical’ feminists.
As ever when we find the judges cropping up somewhere we might not expect or want them, there are two forces at play.
First, there is the tendency of the judiciary to try and interpret the law in a manner that expands its own power. The Government is currently grappling with the consequences of this tendency: the unionist challenge to the Withdrawal Act and the Irish Protocol rests on a theory of ‘constitutional statutes’ that was invented on the bench.
But whilst conservatives are wont to complain about this, MPs must also shoulder their share of the blame. For it has been Parliament’s wont to pass legislation granting or entrenching rights in broad terms, and then leaving the judges to iron out the fine details as cases emerge. Tayler may have spoken with unwise baldness, in light of Forstater’s successful appeal, but it was MPs who put him in a position to be deciding what views qualified for legal protection.
The Forstater case highlights a link between two things we know are on the Government’s agenda: being seen to take action against some of the ‘woke’ stuff, and restricting the political role of the judiciary. But delivering meaningful, structural change will require far more than ministers wading into the latest row on Twitter, or even withdrawing from Stonewall’s workplace scheme.
At minimum it will mean making sure the planned Judicial Review Bill makes it into the legislative agenda and in a sufficiently meaty form. Some sources suggest that the Prime Minister has ordered that the proposals be watered down – and if the Conservatives aren’t going to do this shortly after winning an 80-seat majority, they’re not going to do it at all.
It could also mean thinking again about the Government’s relationship with the judiciary and the diminished role of the Lord Chancellor. Our editor has previously looked at Robert Buckland’s thinking on this.
But to truly limit the scope of the courts will require something much bigger: a fundamental shift in how Parliament approaches legislation. It means tightly-drafted legislation, and a much more proactive approach to following it up in the event of judicial misinterpretation. It means resisting the urge to farm important decisions out to the judges, and amending existing legislation that does so.
This is hard, detailed work, and to succeed it will require the full attention of an able and determined team over the long term, with the full backing of the Prime Minister. Without it, we can expect the next generation of Tory ministers to end up defending what this generation strikes poses against.
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Author: Henry Hill
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