Artillery Row

Rule of silence

Good laws can’t be made if we don’t talk about them, and bad laws can’t be repealed in silence

I didn’t become a barrister by design but rather by default. I was rubbish at maths and science but wanted to meet boys at University, so English literature was out. My father was distraught he hated lawyers but I ended up a barrister after many years of study. My training taught me to understand the crucial importance of the rule of law and my role in its protection.

Barristers do not refuse to represent people who offend us

The World Justice Project defines the rule of law as a durable system of laws, institutions, norms and community commitment that ensures accountability, just laws which are enacted, administered and enforced fairly, and accessible to the communities they serve. It is recognised as fundamental to: 

international peace and security and political stability; to achieve economic and social progress and development; and to protect people’s rights and fundamental freedoms. It is foundational to people’s access to public services, curbing corruption, restraining the abuse of power, and to establishing the social contract between people and the state”.

Over the years, as I read and understood more, I grew proud of my profession and its commitment to ensure respect for the rule of law and equality of all before the law. The “cab rank rule” determines that barristers take on the cases that they are offered; we do not refuse to represent people whose politics or personalities offend us. 

The rule of law and those who defend it are often under attack by those who wish to sweep away all annoying restrictions on their doing exactly as they like. It is therefore even more distressing and disappointing to see some in my own profession apparently now careless of its importance and wishing to silence views they find “offensive” rather than offer any counter argument. 

On 15 November an anonymous group of barristers wrote to the Master Treasurer of the Middle Temple to express their “profound disappointment” that the inaugural Middle Temple LBGTQ+ annual dinner and discussion now included as a speaker the female barrister Naomi Cunningham, co-founder of Sex Matters alongside Maya Forstater, who has publicly objected to the conflation of sex and gender and the denial of single sex spaces for women. 

The demands that followed are sinister

Her inclusion was apparently so “profoundly disappointing” because the letter writers assert the event had been intended for members and their guests to “celebrate and get glitter on their lapels”. This attempt to reframe the event as some big group hug cannot survive its original title, advertised as “the fight to ban gay conversion therapy”, including the CEO of Stonewall as guest speaker. This was therefore manifestly a political gathering, held during the Government’s bizarrely truncated consultation period on its proposals to ban “conversion therapy”. 

Cunningham was singled out for particular criticism for using “demeaning and insulting” language about a trans woman, which appears to have been nothing more than referring to this person as a “man” and “he”. That this person had also suggested that female rape victims who objected to male bodied people at a Rape Crisis Centre should “re-frame their trauma” might also be considered grossly insulting and demeaning to others, but unsurprisingly, no comment was made about that. 

The letter writer’s objections reveal in depressing clarity their poverty of thought. The decision to include Cunningham was not seen as a necessary attempt to provide some balance in a political debate about our laws, but rather as:

“…send[ing] a damaging message to trans members and prospective members of the Inn that their inclusion is not something they can take for granted but is ‘up for debate’… This development undermines important efforts to remove the barriers to trans people’s full and equal participation in the law”.

The demands that followed are sinister: not merely an apology and possibility of a refund for those who now don’t fancy going to the event, but a future commitment to “engage with trans members of the Inn to ensure that future events properly reflect the values and objectives of the LGBTQ+ forum, so that all are welcome”. 

Bad laws can’t be repealed in silence

Just what are these values and objectives? Equality and inclusion are not achieved by demanding that one group alone is exempted from the rule of law. The wishes of men to be identified as women are, in certain circumstances, in distinct conflict with the rights of women to single sex spaces for their safety and dignity. The wishes of some to declare that “trans” is an immutable state fixed at birth has immediate and serious impact on the discussions around medical transition for children. We must be able to talk about this issue, and to do so would not be denying anyone their right to exist or be included, nor would it equate to being “unwelcoming”. 

Laws are both fashioned and challenged by open debate. Good laws can’t be made if we don’t talk about them, and bad laws can’t be repealed in silence. No society is worth living in, if we cannot recognise the importance of laws and equality before the law. 

I don’t know of any one who said it better than Robert Bolt in A Man for All Seasons:

WILLIAM ROPER: So, now you give the Devil the benefit of law!
SIR THOMAS MORE: Yes! What would you do? Cut a great road through the law to get after the Devil?
ROPER: Yes, I’d cut down every law in England to do that!
MORE: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

When this passage no longer has the power to move me, I will know it is time to hang up my wig and gown. I have often said that I do not think the higher levels of the judiciary have been captured by this strange madness which has taken over so many of our public institutions. I do not think I can be so confident about the generations that will in time come to take their place. By training and temperament, barristers should always be ready and eager to state their case. But this group of barristers cannot even put their own names to an attempt to silence another. 

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