Did the flexibility of the UK's unwritten constitution facilitate changes that have made governing almost impossible?
The Great Trans Rights Post-Brexit Looniness
Brexit occluded every other political issue and debate in the United Kingdom, and now Brexit is “done,” all the things left to fester in darkness—unloved and alone—for three-and-a-half years are crawling out into unaccustomed sunshine.
One of those festering things is what I’ve come to call the Great Trans Rights Post-Brexit Looniness. And I’m not talking about Douglas Murray’s Madness of Crowds (which came out before the election and so enjoyed a somewhat muted critical response; the country was still consumed by Brexit). I’m talking national psychosis that takes in everything from what Labour is currently doing to itself to the Miller v. College of Policing & Anor judgement and a great deal else besides.
I do not use the word “psychosis” lightly, either, but it’s become clear—since January 31—the madness that characterised the UK’s Brexit paralysis has decamped to other, entirely unrelated issues: everything from the HS2 rail project to Heathrow’s third runway to No 10’s hiring practices to the slow motion train-wreck that is UK Labour’s leadership contest. The Miller case, however, is remarkable for its Kafkaesque weirdness and wild hilarity mingled with pseudoscientific nonsense.
“You have to understand,” the officer in the case, Humberside Police Constable Mansoor Gul (a “Community Cohesion Officer”) allegedly intoned, “sometimes in the womb, a female brain gets confused and pushes out the wrong body parts, and that is what transgender is.”
Harry Miller, owner of a stevedoring firm and ex-policeman, was flummoxed. “You’ve got to be kidding me. Wrong body parts? You have to know that is absolute bullshit. Is this really the official police line?”
“Yes,” came the reply. “I have been on a course.”
The judgment in Miller is full of gems like this. Law & Liberty could simply post up a dedicated highlights page. There’s no way I can top it. One wonders what happened to the right body parts. Did they remain in utero? Has this theory about a confused brain pushing out the wrong body parts been peer reviewed? Was PC Gul suggesting only female brains get confused and push out the wrong body parts? “I’ve been on a course” can be used to back up any claim, no matter how bonkers. “Ants are not real. They are little tiny robots.” “Really?” “Yes. I’ve been on a course.”
The course, in case you were wondering, was run by Stonewall, a UK gay rights lobbying outfit that has rather lost its mojo. Now that we gays, lesbians, and bisexuals have satisfied our civil society claims, Stonewall is focussing all its energy on transgender rights. Mr Miller, the ex-copper-now-docker mentioned above, was rather rude about Stonewall, its courses, and trans rights activism more broadly. The medium for his rudeness was Twitter. His conversation with PC Gul took place after a single formal complaint about his tweeting was made to Humberside Police, which duly dispatched an officer to Miller’s place of work—ostensibly “to check his thinking.”
Miller sued, seeking judicial review not only of an unwanted visit from Plod, but also of having a “non-crime hate incident” placed on his record—the sort that appears when one goes through an enhanced criminal history check. He won on the first claim but lost on the second. Put shortly, the court ruled that a lawful policy (the College of Policing’s “Hate Crime Operational Guidance”, or HCOG) had been unlawfully applied in this particular case. The fact that the police recorded an allegation against Miller was not in itself unlawful: rather, the illegality stemmed from the actions of Humberside Police after the “non-crime hate incident” was recorded.
Mind you, Miller was given a “leapfrog” certificate to appeal to the Supreme Court, possibly by way of the Court of Appeal, on the criminal history claim. The country’s superior appellate court will now decide whether the recording of non-crime hate incidents pursuant to HCOG is unlawful at common law or contravenes the UK’s treaty obligations on freedom of expression, specifically Article 10 of the European Convention on Human Rights.
The Miller case is taking place against a background of loopy nationwide spats over transgender rights. A tax policy expert was sacked for saying that people can’t change their biological sex. Comedian Graham Linehan (of Father Ted fame), like Miller, received an unwanted visit from Plod and a “harassment warning” over his trans-tweeting. A journalist who criticised trans rights activists on the BBC had her face photoshopped onto pornographic images and uploaded all over the Internet in addition to Plod attempting to pressure her into an interview under caution with the duty solicitor (“attorney”) rather than her own solicitor. People are being expelled from the Labour Party for saying women don’t have penises. Dawn Butler, a candidate for Labour’s Deputy Leadership, bowled up on Good Morning Britain the week before last and told her increasingly stunned interlocutor, “a child is born without sex, a child is formed without sex in the beginning”.
The transgender lobby—as distinct from individual trans people—has got its way by dint of institutional creep, then by bullying dissenters. There is a foot-stamping petulance to the phrases “trans rights are human rights” and “trans women are women,” as though any assertion delivered with sufficient intemperance can bend reality. Quietly petitioning ministers and changing policies within the NHS allowed lobbyists to make huge strides without the mainstream noticing. But activists being activists, it wasn’t enough for them to win—the opposition had to lose in a manner that foreclosed all future discussion. Contemporary transgender politics—embedded in social media, censorious, sometimes threatening, occasionally violent—has produced a backlash that impedes further progress. There is now a debate. The Miller ruling has opened the floodgates.
A debate is necessary but isn’t what transgender activists want. This is because women’s existing statutory and common law rights and those rights the lobbyists claim are in conflict, and it’s messy when rights compete. After all, they insist their rights are “not up for debate,” at once sponging off previous civil rights campaigns and relieving themselves of the burden of making and winning an argument. This is one of the problems with a rights-based legal order, remembering of course that a priori rights are an American import, almost wholly foreign to the legal positivism that characterises the English common law. “Rights” untrammeled by politics means activists for a given cause need only convince the State of their claim, whereupon it will be enforced in law and policy without regard to democratic views or social consequences.
This is a reminder of the point made by figures as diverse as jurist Lord Sumption in his Reith Lectures and philosophers like Sir Roger Scruton, to wit: in the UK at least, rights are not pre-existing, don’t emerge fully-formed from on high, and are held against our fellow-creatures. This reality necessitates a measure of electoral consent. Trans lobbyists do not want to seek popular consent, because they know—from mountains of evidence gathered since December’s General Election—that it’s unlikely to be forthcoming.
The involvement of law enforcement in all this is notable. There’s been a concerted attempt to control private citizens’ social media activity and wider political debate, which is why Miller’s win is important. The court laid into Humberside Police (and by extension forces around the country) for pitching up at people’s workplaces and homes over jokes on Twitter or—in the case of journalists—standard reporting and commentary. Orwell was name-checked. The words “Gestapo” and “Stasi” and “Cheka” were used. Police will now have to wind their necks in.
In an extraordinary interview with journalist Peter Whittle, Miller describes how the “absolute lies” presented to the court in police affidavits “nearly broke” him. His story is a reminder that “woke” police are still police, with an institutional predilection for self-preservation capable of undergirding any form of authoritarianism. “I took my car to the Humber Bridge. I got out my car and started walking across the Humber Bridge. I looked over and thought, God, that’d be tempting. Just stop it all now.” Miller’s wife picked him up thirty miles away from home and after midnight; he was suffering from hypothermia. “I had to keep walking,” he says, “I had to get as far away from that bridge as possible.”
That police have complained bitterly about being “under-resourced” while black boys in London are knifed at record rates and Pakistani Muslim grooming gangs in the North and Midlands have been allowed free rein is now a genuine national scandal. After the ruling, the Police Federation’s Chairman conceded the point: “I can understand why the public are confused when we’re saying we are so overstretched, then we have police knocking on the door saying, ‘Why are you saying that in a tweet?’”
Miller’s appeal on HCOG is also one to watch. As it stands, HCOG describes a hate incident as “any non-crime incident which is perceived, by the victim or any other person, to be motivated by a hostility or prejudice against a person who is [x] or perceived to be [x].” Importantly, the definition is based on perception alone, rather than an objective assessment of whether there is evidence of hostility or prejudice. HCOG doesn’t apply only to transgender people, either, but to anyone with a “protected characteristic” under the Blair-era Equality Act (ethnic minorities, women, gays and lesbians, etc). Miller has a point when he argues this is a form of “pre-crime,” and that the trans lobby has weaponised HCOG especially when compared to other minorities. People are being landed with criminal records in all but name without even a hint of due process.
When I was a girl, my father joked that Heaven had French chefs, German engineers, Italian lovers and British police. Hell, meanwhile, had French engineers, German lovers, Italian police and British chefs. In recent years, food in these Islands has improved enormously, but the police seem to have lost their way. They have done so as part of a moment of national madness. Much of the country really does need to check its thinking, but not in the way PC Gul meant.