Judiciary’s Equal Treatment Bench Book
So Much for the Facts
A scene reminiscent of the great unveiling at the end of The Wizard of Oz recently played out at the Allison Bailey case when The Great and Powerful Stonewall were forced to step out from behind the curtain and give an account of their actions. This came in the form of a little fellow with purple hair who looked in urgent need of a gravy dinner. Shorn of the ability to simply pronounce a magical spell and make it become so, Stonewall’s Head of Trans Inclusion required the immediate presence of both his Mum and a comfort dog to get him through the ordeal, as though cross examination were akin to waterboarding.
His testimony confirmed what Fair Cop disclosed three years ago. Stonewall understands the law, is irritated by it, but does not much fancy the democratic process as a means of making changes. Despite the proliferation of rainbow flags, Parliamentary democracy, it turns out, is quite a tricky beast, meaning Stonewall has had to develop a work-around.
To out-manoeuvre archaic legislation, such as The 2010 Equality Act, Stonewall has bamboozled with semantic chicanery borrowed from Lewis Carrol’s Through The Looking Glass. “When I use a word,” says Humpty, “it means just what I choose it to mean—neither more nor less.” The strategy may not work in Barnsley where a spade remains resolutely a spade, but it does have traction amongst the linguistically incontinent grandees at Westminster and Lambeth Palace. Both Stella Creasey and The Archbishop of Canterbury have embraced the deceit and, as a consequence, they tie themselves in the kind of knot that was once the preserve of contortionists and fans of Japanese rope bondage. (Apologies to anyone who is triggered by that image).
The maxim of Hegel springs to mind: “If facts contradict theory, then so much worse for the facts!”
Where a word written into legislation proves problematic, then so much for the word! Guidance and Annexes are used to make the switch. For instance, the Police and Criminal Evidence Act 1984 unequivocally states in relation to the search of prisoners that The constable carrying out a search shall be of the same sex as the person searched. The sycophantic National Police Chief’s Council serves its master when it swaps the word sex for the concept of gender identity, thereby accommodating Stonewall’s insistence that trans women must not be distinguished from women in any way.
Law is dry and difficult. Guidance comes with pictures, pie charts, misty-eyed first person testimonies in large pink speech bubbles and beguiling sentences, like this one from Stonewall’s Service Delivery Toolkit:
“The descriptive term used within The Equality Act is gender reassignment but this is a very narrow definition of what it means to be trans. Going above and beyond the law, the most inclusive services consider gender identity to be a protected characteristic.”
If adoption by powerful arms of the state is any mark of success, then Stonewall is the undisputed master. According to Sex Matters, the following government agencies are all champions of the Stonewall scheme and have, therefore, adopted its Glossary of Terms: the Departments for Education, Digital, Culture, Media and Sport, HM Treasury, Companies House, The Health and Safety Executive, The Maritime and Coastguard Agency, The National Crime Agency, and The Independent Office For Police Conduct. With enough powerful allies reading from the script, the law is effectively changed without much troubling parliament.
In a previous world, such obvious departures from the law by the state may have found redress at the High Court, but it, too, has fallen to the bait and switch. The judiciary’s Equal Treatment Bench Book adopts with gay abandon hitherto alien concepts such as cis, a-gender, and genderqueer as if these words were as uncontroversial and commonplace as wig, magistrate and dock. The politicised, radical subversion of conventional gender categories does not appear to bother the lords and ladies of the bench one bit. In fact, they practically leap to it. Of the 79 paragraphs devoted to promoting trans ideology, Maya Forstater is acknowledged in a miserly one. This comes with a whiff of wormwood, the threat of hellfire, and is properly read with a hiss:
Gender-critical beliefs (as long as they do not propose for example to destroy the rights of trans people) are protected beliefs even if they might offend or upset trans people (and others). However, holding a belief is different from behaviour. As explained in the well-publicised Forstater case, “misgendering” a trans person on a particular occasion, gratuitously or otherwise, can amount to unlawful harassment in arenas covered by the Equality Act 2010.
Bias in favour of a politically contentious paradigm is not limited to gender. We are told, for instance, that Islam allows men and women to participate in all spheres of life, which will come as a surprise to both the Taliban and the women of Saudi Arabia. And at the recent directions hearing in the Laurence Fox defamation case, counsel argued for trial by jury on the basis that twelve ordinary men and women would be better placed than a judge to consider an allegation of racism because, unlike the judiciary, the public has not been guided to adopt this definition of racism:
It is not necessary for the discriminator to be personally prejudiced or consciously aware that he or she is treating a person less favourably because of their ethnicity. “Racism” is a term defined more by effects / outcomes than by motives: A racist action, or a person who acts in a racist way, is not necessarily racially prejudiced. However, the term is often used to describe a combination of conscious or unconscious prejudice and power to implement action which leads, however unintentionally, to disproportionate disadvantage for BAME people. People who use the term “racist” to describe the actions of others may or may not mean that the other person is personally prejudiced.
Under this ghastly farrago of progressivism, orthodox burdens of proof are elbowed aside to accommodate the political doctrine of critical race theory and its feast of moveable outcomes. It means little that an individual judge may be able to is rise above the guidance to apply independence of thought because, equally, a judge might not. Furthermore, if The Bench Book can be ignored, then what is its point? Certainly, it does not anticipate being ignored, as is made clear in the The Foreword to the 2021 Edition, written by the Chair of the Judicial College, Lady Justice King DBE:
The Equal Treatment Bench Book has, particularly since its last major revision, published in February 2018, become a key work of reference. It is used, daily, by the Judiciary of England and Wales. It is referred to in their training courses and commended by the appellate courts. It is admired and envied by judiciaries across the globe.
The Equal Treatment Bench Book is designed to influence the Bench in the same way that The College of Policing Hate Crime Guidance was designed to influence policing. That ended badly. So will this.
The Bad Law Project launches on 9th June.
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