LawFare
I am talking about 'LawFare' at the Battle of Ideas on October 15 2022. So I thought it a good idea to gather my thoughts.
What is lawfare?
So far, ‘we’ - the loose collective of the ‘gender critical’ - have had to spend over £3 million generated by crowdfunders to pay for legal action, not to create new law but simply for the appeal courts to re-state what the law actually is. If Maya Forstater had accepted defeat at her first employment tribunal, all of us who believe in the immutability of sex would remain unworthy of respect in a democratic society, if Harry Miller had made do with his partial victory against Humberside Police, we would not have had confirmation that the College of Policing Hate Crimes Guidance was an unlawful breach of our Article 10 rights.
That is the first clue to what I think LawFare is and does. It’s not about creating change. It’s an urgent response in a state of emergency, when fundamental legal rights have been abandoned. It is not about initiating an act of war - it is about defending your territory with as much force as you can muster, because the consequences of defeat are terrible.
It’s not a workable strategy on its own for creating social change, nor can it be relied upon in isolation to sustain them. As Jacob Mchangama commented in ‘Free Speech - a global history from Socrates to social media’ when discussing how to protect freedom of speech
Like a massive body in outer space pulling in all the matter close to it, censorship draws us all in. It is therefore all the more vital to actively foster and maintain a culture of free speech to ensure that this freedom continues. Laws are not enough on their own
But without a firm foundation of law, everything is vulnerable. The law, if done right, provides a mechanism of enforcement and sends a message that this thing here is important enough to be protected by the State itself; if you disobey the law and disrespect this thing, you will be punished, possibly even your liberty will be taken away.
So if law and social will come together and in a coherent way for an objective good then we have a potential paradise. We have seen the mixture of law and social will move together on issues of same sex attraction - from the prosecution and forced chemical castration of Alan Turing in 1952 to near universal acceptance of same sex marriage by 2013.
If law and social will are out of synch then we risk riots - remember the Poll Tax? Martin Luther King Jnr expressed clearly that we should not feel constrained to obey ‘bad’ laws.
One has not only a legal, but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws.
Of course, we may all have some very different views about what is ‘just’ or ‘unjust’ ; a neat and recent example being the success of the Attorney General’s reference to the Court of Appeal regarding the ‘Colston 4’ who were acquitted of criminal damage for throwing a statue in Bristol Harbour on the basis that a conviction would compromise their Article 10 rights. On the 28 September 2022 the Court of Appeal confirmed that their behaviour, being a ‘violent protest’ was not protected by the ECHR.
But this is the kind of push and pull that is to be expected - and welcomed - in any society worth living in. It shows we care enough about our laws and their applications to take them seriously and that we have an appellate court structure to restore order if the first instance courts go awry. I don’t think people grappling with whether or not laws are just or unjust is the problem.
The real problem, and the one in which we have been tangled for at least the past five years, is the worst of all worlds. What we have seen is the law deliberately manipulated by members of a minority ideology to enforce acceptance of ‘gender identity’ as a protected characteristic, not merely alongside sex but in place of it. Dissent has been silenced and compliance enforced by the threat of loss of livelihood and even liberty. Twisting and corrupting the law to promote such an ideology, is not merely catastrophic for the individuals impacted, but a direct threat to trust and confidence in our legal institutions and the health of our democracy. It requires an urgent and immediate response.
And this is what Lawfare has given us. When the house is on fire, you don’t gather in the kitchen to organise a conference later in the month to discuss the best exit routes. You get out, as quick as you can and if you have to beat a door down with an axe to do it, that’s what you do.
What’s next after Lawfare?
But of course what Lawfare does not do and cannot do alone, is to create and maintain change. As you survey the charred ruins of your house, thankful you got out alive, you don’t waste time and energy continuing to run around screaming and waving your axe. The time now is to rebuild, to investigate how the fire started, how it took hold and how this could be prevented in future.
I hope we don’t have to continue to rely on lawfare for very much longer. We are all tired, we have all given many hundreds of pounds to very many crowdfunders. I am shocked by how long it is taking, how even judgments of the Employment Appeal Tribunal and Court of Appeal appear to have made very little dent in some people’s arrogant certainty that they know what the law should be.
I do not forget or ignore the massive emotional and financial toll this has taken on the individuals who have had to take on not merely their employers but the State itself.
But the question I pose is simple - if not Lawfare, then what? How else were we supposed to get out of a house that is on fire?
This is a very fine piece, Sarah.
We need a political party with the nerve to take the issue on, debate it in public, and be open about the consequences.
None of our current political parties seem up to the job, so perhaps we need to start a new one, focussed on the things that are important to women. And if you think "They'd never get into power", just look at what Nigel Farage and his various anti-Europe parties achieved without a single MP. You just need to shout loud enough and politicians will use their power to make changes. I believe that people who want to protect children and women from the sexual fetishes of powerful middle aged men have a pretty large constituency and could make a good amount of noise. Isn't that what democracy is about?