As the independent bar in Scotland, the Faculty of Advocates is by necessity a reserved and disinterested body. It does not issue letters like the one that has gone out this morning to Karen Adam, the convenor of Holyrood’s equalities, human rights and civil justice committee. The correspondence takes issue, in blistering terms, with the conduct of Adam’s deputy, Maggie Chapman, a Green MSP and one of the most vocal proponents of gender identity ideology in Scotland.
In a video shared widely on social media, Chapman addressed a rally in response to the Supreme Court’s judgment in For Women Scotland vs The Scottish Ministers, which ruled that the definition of ‘woman’ and ‘sex’ in the Equality Act refers to biological sex. This marked a major setback for gender activists and efforts to pass off their preferred policy of self-identification as the law of the land.
The video shows Chapman denouncing the ‘bigotry, prejudice and hatred that we see coming from the Supreme Court’. Even by the febrile standards of Scotland’s gender debate, this was an extraordinary statement.
The Faculty of Advocates certainly thinks so. Noting its ‘duty to speak out in defence of the judiciary when it comes under attack’, it condemns Chapman’s ‘appalling comments’ as ‘outrageous’. The Faculty believes they ‘fail to respect the rule of law’; represent ‘an egregious breach’ of the Judiciary and Courts (Scotland) Act 2008 (which says MSPs ‘must uphold the continued independence of the judiciary’); and even ‘create a risk of danger to the members of the Court’. In light of the latter, they characterise Chapman’s behaviour as ‘irresponsible and reprehensible’.
And they do more than that. They call on Chapman to resign as deputy convenor of the equalities committee and even to consider her position as a member. Yes, they would like to see the Court receive ‘a fulsome and swift apology’, but Chapman’s aspersions on the justices were so ‘utterly beyond the pale’ that they were ‘not compatible with her role as deputy convenor’. The Faculty has previously criticised newspaper headlines describing judges as ‘enemies of the people’, government ministers decrying ‘activist lawyers’, and Donald Trump’s contempt for the judiciary. Whatever it might be accused of, it cannot be accused of inconsistency. (Incidentally, it calls Chapman’s statements ‘far worse’ than any of these. Chapman will not appreciate being compared unfavourably to Trump.)
Some who otherwise consider Chapman a couple of jetpacks short of a space cadet might rankle at the Faculty’s intervention. Isn’t it just one bunch of lawyers ganging up on a politician for insulting another bunch of lawyers? Tomorrow they could round on a politician of a very different persuasion for accusing judges of delivering ‘two-tier justice’.
These are not unreasonable concerns, and certainly no arm of the state should be above criticism, but our constitutional arrangements are not in place to shield the delicate sensibilities of the bench. They have been arrived at as a way of giving judges the autonomy to uphold the law in all circumstances, including where it might be controversial or adverse to the interests of a particular group, faction or entity.
This requires that certain office-holders, and especially those who make the law, do not impute motives – least of all repugnant motives — to those administering the law. It is not about the reputation of any one judge, nor even of the Supreme Court (which, full disclosure, I would abolish tomorrow), but of the rule of law itself. The law, as interpreted and applied by learned jurists, not only settles disputes but has a special power to becalm passions and mend divisions. The rule of law allows us to be a country where even the most fundamental discords can be resolved with briefs and judgments rather than guns and tanks. If the outcome of court decisions were to be accepted or rejected on the basis of political or other preferences, the process itself would lose legitimacy and the principles underpinning it would quickly wither. We would end up governed by loyalties rather than laws.
The onus is now on Chapman to decide how she will respond to the faculty, and on her convenor Karen Adam, whom the letter asks to explicitly defend the judicial independence of the Supreme Court. This is also a test for MSPs across holier-than-thou Holyrood, who are never slow to their feet to declaim Westminster’s disrespect for the rule of law. Here’s an opportunity to demonstrate the Scottish parliament’s superior regard for legal norms and constitutional conventions. Show those demagogues and ignoramuses at Westminster how it’s done.
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