Critique of judges pursuing ‘radical’ agenda

[BovaryX]

Charles Moore in Telegraph criticises Maya Forstater’s Judge and the entire ‘diversity judge’ paradigm.

I see much more work for lawyers in this. After all, the idea that your sex is biologically determined is common to many religions and many non-religious belief systems everywhere. Is that idea now actually illegal? If so, how are religious and philosophical rights protected under the Equality Act?

www.telegraph.co.uk/news/2020/01/07/judges-appointed-dispense-justice-not-radical-social-policies/

Activist judges are nothing new. In the States, it is seen as a way to get things done that would never be approved by the public. FWIW abortion rights were granted in this manner. I don’t know what the solution is, as both good and bad outcomes are associated with this practice

I think there are very serious problems with the ‘hate incident’ paradigm. As for ‘diversity’ judges, of which Maya Forstater’s judge was one? Another problematic area

I don’t think it’s a good phenomenon, even though it occasionally produces good results. It’s extra-democratic, paternalistic and not subject to the usual checks and balances of lawmaking.

It’d help if laws were written without massive ambiguities for judges to prise apart, too.

A good article on judicial restraint vs judicial activism in the UK, as distinct from the US:

www.prospectmagazine.co.uk/politics/david-neuberger-on-the-power-of-judges-in-the-uk

Thank you Lang for the link

Two interesting articles. I wonder whether Harry's judge is currently being "reeducated" by the many in the judiciary who have taken the Stonewall shilling and are busy carrying out their orders?
This is such a huge mountain to climb with such powerful forces influencing all our institutions. I feel so despondent that it wont change until the lives of countless women and children have been wrecked.

Wait, the judge picked the case?!? Is that how things normally work?

This is such a huge mountain to climb with such powerful forces influencing all our institutions
Uncompromising
I think what’s so incredible is the extent of the influence of this lobby. And the rapidity with which this influence has embedded itself in myriad state institutions. There is something to be said for an elected judiciary. An unaccountable judiciary wield extraordinary power. The establishment state apparatus is promoting a radical rewrite of the meaning of common words in service to a niche lobby. It’s quite extraordinary

I am not sure. I don’t know how judges are selected for individual cases but it was suggested that this case was chosen.

Jonathan Sumption (retired judge) recently delivered Reith Lectures on this subject.
www.bbc.co.uk/programmes/m0005msd
He's arguing the mission creep of the Human Rights Act is placing democracy and judges in conflict (crudely) Here's what he says about assisted dying -
On assisted dying

The Strasbourg Court had previously held that the whole issue was culturally and
politically too sensitive to permit of a single pan-European answer. Each convention state
would therefore have to decide it in accordance with its own values. The essential question
for the Supreme Court was who should give Britain’s answer, parliament or the courts?
Parliament had already given Britain’s answer. The Suicide Act 1961 says that assisting
somebody to kill himself is a crime. Over the years, parliament has considered proposals to
change the law but has always decided against it. Yet, five of the nine judges who sat on
this appeal thought that the question was ultimately one for the courts. Two of the five
would have declared the Suicide Act to be incompatible with the convention. The other three
decided not to do that but only because it would be premature until after parliament had had
an opportunity to consider the matter. One of the three even threatened that unless this was
satisfactorily addressed, the courts would do it for them.
Now, if that threat meant anything, it meant that the courts should be prepared to
exercise legislative powers in place of the legislature. I am not alone in questioning the
constitutional proprietary of all of this. The meaning of the Suicide Act is a question of law.
The question whether the Suicide Act is a good thing is not a question of law, it’s a question
of moral and political opinion. I was one of the minority who considered that this was
entirely a matter for parliament. I thought that on such an issue as this, my own opinion had
no greater weight, by virtue of my judicial office, than that of any other citizen. I still think that.

You're right BovaryX
When you look at the torrent of changes - all removing rights, resources and safety from women - and you realise that no women anywhere are demanding to share toilets, changing rooms, hospital wards etc with men, let alone to have our identity and language erased. Yet here we are.

I thought that on such an issue as this, my own opinion had no greater weight, by virtue of my judicial office, than that of any other citizen. I still think that

Imnobody
Thank you for that link, that’s an interesting perspective and it highlights some of the serious issues around the judiciary

www.eventbrite.co.uk/e/hate-crime-the-elephant-in-the-room-tickets-87800825633?ref=estw

If you want to learn more Fair Cop will be discussing these topics in Manchester on the 8th of February

DJ
Thank you for the link, that looks really interesting. Unfortunately I won’t be in UK, wish I could attend. Harry’s case has really highlighted the profound problems with the recording of ‘hate incidents’ and the training the police have received. The verdict will be interesting

Wait, the judge picked the case?!? Is that how things normally work?

Yes, it seems to be for this legal level. As PPs have said, there's an upside and downside of judiciary who have a single interest in addition to their usual expertise.

The Neuberger piece is helpful. If Neuberger had written it in plain language it would be useful to a wider readership. I needed to re-read it in places to be sure that I understood it.

Because we have no such constitution, the UK supreme court, unlike, for instance, the US supreme court, cannot refuse to apply, let alone to strike down, a statute enacted by the parliament on constitutional grounds, however objectionable the statute may be.

I enjoy good prose but this is not leisure reading for most of us. I wish Neuberger had written this more plainly because this topic is important to us as citizens.

Information about adult literacy rates in the UK.www.jrf.org.uk/press/5-million-adults-lack-basic-literacy-and-numeracy-skills

I thought that on such an issue as this, my own opinion had no greater weight, by virtue of my judicial office, than that of any other citizen.

Offhand, I do expect judges, ethicists, and various specialists to have a more valuable opinion than I do. Like most people I have some experience of these issues but relatively little understanding of the complexity of suicide. I want professionals to have a greater, more diverse, nuanced experience and understanding than I do. I accept that this is not always true.

This is a very interesting thread. Thanks to those contributing and for the informative links.

Oh, this is interesting and I think it's really important.

It's one of those things where I remember debates when I was a girl about the way the courts had been sifting through our Charter of Rights and making decisions. Canada has only had its own constitution since 1981 so through the 80s and even 90s there were a lot of old case law and laws themselves being challenged on charter grounds.

There were people who were against this and felt it was really handing an inappropriate power over to the courts, but they were pretty much painted as regressive (and probably also bigots) by liberals and progressives. The sense that they would just make sure our principles were consistent in legislation and never more was strong.

I think this has actually affected the way legislators work as well. Similarly as the poster above mentioned, our old abortion laws were struck down, but the legislature never went back to craft any new ones as happened in the UK or most other countries. The sense that it would be difficult to do so within the charter was there, but even more interestingly/worryingly, today this is used as an absolute by most political parties. Trudeau for example has made the claim that the court decision precludes any new law at all and in fact that it means that any doubts about a right to an abortion for any reason at any point in a pregnancy is a non-Canadian value.

Which may not tweak the radar of many here, but when you realise that they use this same tactic about things like gender ideology - you see where this could go. Concerns about an issue that has even an appearance of contradicting some ruling, or someone claims it does - that is an un-Canadian POV. (And they wonder why they don't seem to be able to hit on a unifying political message across the country.)

When Bill C-16 was being discussed, again, there was a strong sense that it was being moulded by what the courts would do, that it was the next necessary step. SSM was also accomplished in the end as a charter challenge rather than because most people supported it - in fact they did mostly, but that wasn't the mechanism, and some experiments in other solutions were cut short as a result.

It’d help if laws were written without massive ambiguities for judges to prise apart, too.

Bad laws do make for bad judgements. On the other hand, all laws will have some ambiguities. I think this is why case law, over time, where people seek to apply both the sprit of the law and good sense to all kinds of real situations in all their variety, is actually a really good method. Because you can never write a perfect law that will work for all time and every situation, or a perfect constitution that will work for all time either.