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THE WELSH LIBERAL DEMOCRATS IN 2021: TIME TO ‘PUT RECOVERY FIRST’

A PREDICTABLE DISASTER

With Jane Dodds elected on the regional list, Welsh liberalism isn’t quite dead yet. But the result in Wales is still nothing to be proud of.

It’s true that the pandemic has dominated the news agenda above all else over the past year and has also meant we’ve been unable to do our usual level of on the ground campaigning. It’s also the case that the UK party is still struggling to emerge from the shadow of coalition. Across the UK: it’s not clear what we stand for, we frequently have nothing to say on major issues, many of our natural supporters have drifted over to other progressive parties, we’ve hindered our recovery with some very poor strategic decisions and election campaigns in recent years, and we probably chose the wrong leader.

In Scotland we’re now at minor party status after losing a seat. In London we came in 4th place to the Greens by some margin in both the Mayoral and Assembly votes, and in many areas of historic strength at a local level we not only haven’t recovered from coalition but have slipped further back as other parties have grown in strength.

Despite that, we did hold most council seats, made significant gains in some areas (including some unexpected ones), and are emerging as clear challengers to the Tories in parts of southern England. There’s a clear path to increasing our parliamentary party at the next General Election. Even with our severe decline in Scotland, we held our four constituencies comfortably and came very close in another seat. There are serious problems but still a base to build from, and with the independence/unionist dynamic of Scottish politics there is at least a partial excuse.

We can’t say that for Wales. And we can’t blame anybody else. The fault lies squarely on the shoulders of the Welsh party.

Poor leadership, vacuous messaging, a weak manifesto, no strategy for gaining votes to speak of, a poor digital presence and not even any freepost literature in most constituencies – whilst deeply sad for many hardworking candidates and campaigners, for the party as a whole the results were deserved.

They were also entirely predictable. We have failed to learn anything whatsoever from election results in Wales at all levels of government over the past 10 years. The party has made many mistakes in this time and arguably before that but has chosen to hide from them rather than address them. We can do this no longer.

As the Senedd results indicate, if Plaid Cymru has been shouting Yes Cymru! into an online echo chamber, then we’ve been whispering nothing so much into a void.

OUR POLICY PITCH

Our pitch to the electorate was little more than a shopping list of vaguely worded policies – which, to borrow a marketing concept, were presented as features rather than benefits.

Our slogan was ‘Put recovery first’, but in all honestly, I already can’t quite remember exactly how we were planning to do that. It failed to cut through. It wasn’t obvious why exactly the other parties couldn’t be trusted to help Wales recover – particularly as Mark Drakeford’s Labour party were widely considered to have done a good job in managing the pandemic, or how a party expected to gain 1 or 2 elected members at most would be able to deliver this. Genuinely held perhaps, but it wasn’t a unique selling point. Any other party could have said it and sounded like they meant it. It was evidently not cutting through, but we had nothing else and stuck with it regardless.

There are good policies in our manifesto – there always are. But aside from the simple fact that most people will never read it, the key messages failed to resonate and were never likely to. A party emphasising its bold plan for communities they’ve allowed themselves to all but disappear from, there’s a credibility issue.

Aside from ‘put recovery first’, the only things that sunk in for me were that we had a policy for 24-hour mental health services, without being entirely sure of what the details were, and a Welsh Language Act, without having any idea of what the details were. I’m aware we wanted free bus travel for the under 25s, but you know, nobody has been using buses for the past year anyway. I also know we want to devolve the justice system, but I think I only remember that last one simply because I’m not sure if I agree with the policy (it’s not clear to me from our manifesto that we truly understand the practical reality of doing so, nor is it something we put any effort into arguing for during the campaign).

And I’m someone who has been paying attention.

Mental health is incredibly important and right for us to have clear policy on, but I don’t think we ever really made clear why only the Welsh Liberal Democrats could tackle this and why anyone should consider it a key factor in how they vote.

The same goes for our commitment to a federal UK. It’s something I strongly support, but I’ve yet to see the party make any real case for it. Even when directly asked the question in the leader’s debate, Jane Dodds managed to evade giving any explanation as to what we actually mean by federalism, what impact it would have on people’s day to day lives, or how it aligns with our values.

It feels a lot like the problem we had with the EU before the referendum, in that the Liberal Democrats never really told the public why we believed in it or what the benefits were. In fact, we did our best to avoid doing so – which allowed others to frame the debate. It’s true that independence would be a ‘distraction’, but as a message it simply isn’t good enough on its own, particularly if that message is already effectively co-opted by other parties. Just look at how it’s worked out for our party in Scotland.

WHAT DO WE REALLY BELIEVE IN?

For a long time, we have failed to make clear what it is exactly that Welsh Liberal Democrats believe in – what our values are and what our vision is for Wales and its place in the UK. We’ve failed to inspire any real sense of feeling towards the party in Wales and have failed to articulate what exactly makes us different and better than any of the other parties. It was the same again in this election.

If I wasn’t already a Liberal Democrat, I can’t think of any reason why I would want to vote for the party in Wales. Our UK brand has problems, but they’re even more acute here. It’s harsh to say, but if we had been wiped out, who would have noticed?

On major policy areas – transport, housing, justice, even education, despite us running the department for 5 years – yes, I know we have policies, but I’m not always sure entirely what they are or what we really stand for. And if I’m a bit sketchy on it, what then for the general public?

The party’s long held tendency to ignore issues that aren’t directly applicable to the Senedd, as if the public always makes the distinction, doesn’t help much either. On social media, issues such as the policing bill, unsafe cladding, vaccine passports, UK Labour’s reversion to ‘tough on crime’ rhetoric and examples of Priti Patel’s ongoing disdain for human rights and international law, to name just a few, were largely left to pass us by.

Whilst we have managed to articulate our views on some issues quite well on a few niche political news websites, the problem is that most people are simply not seeing it. That’s partly a consequence of a weaker Welsh media and our perceived irrelevance owing to our lack of elected representatives, but it’s still a problem. On Brexit and our renewed stance in favour of a better deal with Europe, we had little to say in public, despite an obvious gap in the political market and the absence of anything else to say. Our pitch for Universal Basic Income consisted of a likely little seen YouTube video with Jane Dodds a few weeks before the election. Quite often we seem to do policies in isolation, as if as long as we present them nicely on our website, then voters will join the dots and see the significance all by themselves. It’s perhaps a bit naïve.

I just don’t know who exactly we are hoping to vote for us and why we think they should. Other than rural voters in Mid Wales and LGBT+ students, who is the party aiming for? Who precisely do we think we’re talking to?

A DISTINCTIVE VOICE

At the same time as not often having much to say on UK wide political issues or things the federal party is doing, the Welsh party also lacks any real distinctive voice of its own.

Weaker party organisation and limited financial means have meant we’ve always been very reliant on the federal party for both resources and brand identity. Since coalition and the wider decline in party fortunes, that reliance has been a serious problem. During the coalition years, little effort was made to show any divergence in thought between the Welsh party and the federal one and now with no unique political offering in a crowded centre-left field in Wales, after being punished we’re simply being ignored.

The annual pre-election news article about how the party is looking for a revival or that we’re on our way back in Wales, they never really explain why it’s important that we do. Because the reason why is not evident.

Carwyn Jones has just said of Plaid Cymru’s disappointing election result that they simply don’t reflect back a version of Wales that most people recognise. That’s true. But are we reflecting much in the way of anything at all?

We could be quite accurately described as a loose association of local parties, with pockets of strength in parts of the country but absent entirely from most of it. Arguably then we simply no longer register as a serious consideration for voters when deciding on what they want the whole country to look like.

Simply putting Welsh in front of the party’s name is not an identity. In our historic areas of liberal affinity in rural Mid Wales, the ties have weakened. Nor are rural issues in Mid Wales of huge significance to the majority of the population living in more urbanised parts of Wales. And without wishing to downplay their importance to many people, Welsh language schools, transgenderism, and Erasmus are not the most pressing issues facing the country. Whilst council services are important in local elections, nor are bin collections and potholes. So, what do we stand for?

With many other parties sharing policies and strands of ideology with us in Wales, it’s hard to stand out. But we also have a tendency – prevalent in the federal party too – to either effectively cede policies to other parties entirely or change them for the sake of distinctiveness. On many projects specific to Wales, such as the South Wales Metro, regional city deals, the M4 relief road, the Swansea Tidal Lagoon, despite having opinions on them (arguably only vocally made in the latter example), there’s never really been any association with us. It rarely feels that our positions on them are part of any overarching vision for the nation or a clear statement of our values and priorities.

The limited consultation over coalition in 2010, or over the remain pact in 2019, and the carelessness of some federal campaign communications and even literature – none of that suggests that Wales is ever at the forefront of the party’s mind in London, let alone well understood. But, who in Wales is fighting our case? How much influence are the Welsh Liberal Democrats exerting on the direction of the federal party? If we lack a distinctive voice even within the party, is it any wonder that the Welsh electorate fail to recognise one too?

YOUTH MANIFESTO

I don’t want to take anything away from those who worked hard to put our mini youth manifesto together, but I do have to ask who exactly it was for? Much of its content had little obvious relevance to young people. 16 and 17-year old first-time voters are mentioned in Jane Dodds’ introduction but how does ‘put recovery first’ resonate with them? Recover from what? The impact on their education, their future career prospects, being able to socialise with friends and do the things that they would normally be able to, the loss of family members?

It’s a shame, because we had a lot of young candidates standing, with a lot of enthusiasm. If we do this again next time, our young members should take the opportunity to put together something a bit more personal on issues that matter to them and other young people, even if they aren’t explicit policies in our main manifesto or even if they aren’t devolved – drug law reform, the rental market, LGBT+ issues, the need to regain EU freedom of movement, Kirsty’s Erasmus replacement, the impact vaccine passports would have on young people if implemented – there’s a lot that the party could have promoted. It would be good to see that sort of thing outside of election time too. If the central party’s digital campaigning remains lacklustre, then why not give them something to promote.

DIGITAL CAMPAIGNING

It’s easy to simply say we need to be better online. Harder to implement. But it is a fact that our digital presence is extremely poor and has been for some time.

Progress has been made since a few years ago when many local party websites and social media accounts lay dormant, in some cases being up to a year out of date – even in areas where we had strong local parties. But we’re still not there yet.

Many Twitter posts from the Welsh party are barely getting more than a handful of likes. Our Facebook pages and internal groups aren’t exactly engaging. There’s little use of the Lib Dem Voice website beyond the occasional bland press release. Online surveys, although largely intended to capture email addresses, still require better questions than those we typically put out. Many of our graphics are quite badly proofread – a mix of grammatical errors, bland or unclear wording, poor design choices, and some that aren’t even checked at all (last week a graphic titled climate emergency went out with a picture that I presume was supposed to be about mental health). A lot of the party’s posts also seem to have been about reminding people how to vote rather than a pitch to vote for us, which is a strange approach considering we’re a political party not a public service. At one point in the campaign we even posted a Pokemon gif – it’s almost as if we know nobody outside the party is paying any attention.

In the last few weeks of the campaign there were a lot of staged looking photos of candidates standing next to things without saying anything of note – what works on a leaflet isn’t always very interesting on the screen. I did see some personality shine through from a few of our younger candidates on social media during the campaign, or at the very least I felt I gained some insight into what they were like as people. To the candidates in our key seats, I’m sorry but your social media output on the whole couldn’t have been any duller. Candidates have to be careful in what they say, of course, but not banal.

Layla Moran and Tim Farron do a pretty good job at humanising themselves and seeming passionate in the way they write and in what they write about online – they do it on tv too. Luisa Porritt, our London mayoral candidate, was pretty good at it as well – very active and very likeable. I know she had a strong communications team behind her, but even if she failed to break through electorally, she at least achieved some visibility for herself and motivated activists. Sian Berry of the Greens was even better at it. There will be countless examples, within our party and outside of it, of politicians, or aspiring-politicians, using social media and indeed mainstream media in an engaging manner. People don’t like identikit politicians. They like them less if they’re not yet even elected. It’s something we need to be better at.

LEADERSHIP

I like Jane Dodds. She’s a decent woman. But she has felt anonymous throughout both her term and the campaign. And her handling of the 2019 General Election pact with Plaid Cymru and the Greens was not a fine example of strong Welsh leadership.

Yet, she surprised me with quite an impressive performance in the leader’s debate. She was confident, empathetic, and direct in most of her answers. Her repudiation of coalition, that was powerful – but if she feels so passionately about it, why hasn’t the public heard it before? If she’s capable of that level of performance under pressure, why is it so rarely seen?

Kirsty Williams is somebody I also like. And she was for the most part a strong leader. She was also a more than capable Welsh Education Minister and helped pass a number of important policies. Yet none of that has been associated with the Welsh Liberal Democrats and it brought us no electoral benefit whatsoever. It’s not apparent that the Labour party wouldn’t have done most of the same things on their own anyway.

As much as some might say it was about making a difference in government, ultimately the party voted for Kirsty to enter a coalition with Labour for the sole reason that it clearly had no idea what else to do.

It’s quite clear that the party had no more idea of what to do by the end of her term as it did at the start. Kirsty was hindered by collective responsibility whilst in office and the party did little other than post occasional graphics of policy achievements – as if voters would know how great we are simply because we’d told them she’d done something, even if they weren’t necessarily affected by it. During the last month of the campaign we pretty much stopped doing that too. After announcing that she would be stepping down, Kirsty herself effectively went missing in action and little attempt was made to even register her achievements in government with voters as Liberal Democrat success.

And what of those surrounding the leader? And those in other party leadership roles? What responsibility do those on our executive committees have for our electoral fortunes? And our Welsh members of the House of Lords, what have they been doing? Where are the big personalities in our party? How many Welsh Liberal Democrats could any voters name in many areas?

Ultimately, our party leadership needs to honestly ask itself the question, ‘what have we been doing?’

STRATEGY

Our strategy, or lack of it, was a glaring problem in this election. It’s unclear to me where exactly we thought the votes were going to come from. We didn’t even bother sending freepost literature to most constituencies.

It’s as if the party learned nothing from 2016, when we lost all of our regional members having made no real attempt to keep hold of them. The result in 2016 was fairly predictable. The result this time was entirely predictable. Jane Dodds was elected by pure luck.

For a party that wants proportional representation, we are terrible at winning votes under it. That applies all over the UK of course, but Wales being one of only two UK regions which failed to elect a Liberal Democrat MEP in 2019 is quite telling. Immediately after the 2016 election, we should have made a clear plan to target at least some of the Welsh regions and done our best to help build up local party activity in a few more seats within them – Mid & West Wales and South Wales Central would have seemed obvious starting points.

Our electoral strategy since 2010 has been to neglect everywhere outside of four target seats – and was barely wider than that even before coalition. Everywhere else has been allowed to fall back to the point of collapse. It’s been a strategy of wilful abandonment.

Our strategy this year was effectively to do the same as we’ve always done, despite ever-worsening results. A bastion of Welsh Liberalism for over a century, in Montgomeryshire we are now third. In Ceredigion, we fell to 4th. Whilst we did just about earn a list seat in the region, surely our 2019 results in those seats gave us some warning that we couldn’t automatically rely on them for enough votes to ensure that. Despite what the pundits said, we clearly weren’t the favourites in Brecon & Radnorshire and should have been aware of that, so finding the money to at least send freepost literature to show a bit of visibility in the whole region would have been a sensible approach. In South Wales, we secured a very respectable result in Cardiff Central, but it was still a distant second. The seat hasn’t looked winnable since 2011, so why do we keep behaving as if there aren’t another seven seats in the region to potentially draw votes from as well?

Our pick an area, bombard voters with leaflets and knock on doors approach to campaigning is a vital tactic for electoral success (when done well), but it’s not an electoral strategy – and the other parties have caught up. In some areas, they’re arguably even doing it better than us. And when it’s the only thing we’re relying on and a global pandemic prevents us from doing it, well that’s a problem. Literature also needs to be high quality and that’s not always the case. Even in 2019’s successful Brecon & Radnorshire by-election campaign, there were complaints from activists about the quality of the literature. ‘Lib Dem works hard’, ‘Other party can’t win here’ – it only goes so far, and clearly in Mid Wales many ‘other party’ voters simply don’t believe us anymore. We need to be smarter.

What we’re doing just isn’t working.

We can’t win back lost votes if we poll virtually nothing in 90% of the seats. How do we rebuild in areas that have been hollowed out – of votes, of resources, of activists, of motivation?

The first time an appeal to Labour supporters to vote for us tactically on the list vote was made was less than two weeks before the election, by a young party member on social media. Why on earth did it not occur to the party to do so itself? This appeal should have been very clearly made in targeted online adverts and on freepost leaflets to the relevant regions.

The party can say ‘we couldn’t afford it’ all it likes, but we should have begged, stolen or borrowed – or quite frankly considered this over the past five years. I know we’ve had an EU referendum and two General Elections and limited resources anyway, but it felt like the party didn’t even try and do anything to prevent a very predictable result in this campaign.

We found £20,000 to spend on Police and Crime Commissioner deposits, which I do understand was solely for that purpose, yet made no attempt to retain those deposits. We predictably lost 3 out of 4 of them.

Our policy platform for this set of elections was actually quite distinctive, topical and liberal – the policing bill, facial recognition technology, drug policy, community policing – we should have promoted these policies online and in freepost literature. We probably could have got something more in parts of the media too. Hell, maybe we could have used the space to explain why we want to devolve the justice system. Aside from potentially helping to retain our deposits, it would have encouraged crossover votes to the Senedd elections.

THE PARTY MACHINE

We’ve actually made little progress in Wales since the Senedd’s inception in 1999. We were stuck on 6 seats for several election cycles, then down to 5 in 2011 before the collapse in 2016. In that time we held no more than four constituencies at Westminster level, but came extremely close to winning a number of other seats during 2010’s Cleggmania bounce, some of them with little help from the Welsh party – astonishing when you look at our vote share in them today. With the decline in our councillor base and perceived lack of relevance on a national scale, it’s hard to imagine that not so long ago we ran three major cities in Wales.

But aside from acknowledging the impact of coalition since 2010 (which admittedly was massive), it’s not apparent that the party has ever honestly asked itself why we never made any further breakthrough in the Senedd or why our results across all levels of government keep getting worse.

There’s been a complete lack of accountability for the failures of the past decade. The same people keep doing the same things over and over, some of them unable or unwilling to engage with criticism. And now here we are.

The stitch up of certain constituencies as part of the remain pact with Plaid Cymru and the Greens in 2019 is indicative of the attitude towards those outside of the clique.

How many experienced activists has the party alienated or allowed to drift away over the past decade? How many of those who found themselves in influential party roles did so because of who they knew rather than because they were genuinely best suited to it? How many new and enthusiastic members have we failed to engage with and retain? How many former staff members or candidates are no longer involved with the party in any meaningful way? Those are rhetorical questions, because the party knows the answer, yet it never seems to ask itself why.

We’ve talked about serious reflection before and it hasn’t happened – not really.

It’s time to recognise that some of those in positions of influence within the party simply can’t cut it.

WHAT NEXT?

So, what to do now.

Well firstly, just to be clear on this – Jane Dodds should not enter any sort of coalition agreement with Labour, no matter what is offered. They don’t need us this time, but if the idea is floated the party should not entertain it. Back them when we need to, but we can’t rebuild whilst in government. The last five years has shown us that.

But what she must do is hit the ground running. She needs to show leadership and unite the party. And we can’t just hope that as long as Jane Dodds is a hard-working MS the electorate will take notice of us again. We need to know what it is we want her to achieve and what image we want the party to present. The party needs to rediscover a sense of purpose – to show voters why we exist, not simply that we do.

How are we different to the other parties in Wales and why should it matter if we are? Who should our voters be? Who are they voting for now? Why? What do people think of us? What do we want them to think of us? What sort of language and platforms should we be using to convey our messages? We need to ask ourselves these questions.

We need to be asking our members why they joined the party to begin with. And for those who’ve been around a while, why they’ve stayed? Those in the position to shape our party’s future need to honestly ask themselves, if they were coming into politics for the first time today, based on this campaign, would they join the party now?

There needs to be a serious analysis of why the party has gone so far backwards in Mid Wales and in Wales as a whole. We’re at the point of extinction and there’s no hiding anymore. The party needs to take an honest and thorough look at itself and think about why some people are still voting for us and why for the most part they are not. We need to look at every major decision taken by the party over the past decade or more and ask ourselves what could we have done differently? And those leading on this probably shouldn’t be exactly the same people who have led our decline.

We need to be undertaking a long overdue audit of the Welsh party’s campaign capacity and from there develop a strategy to rebuild. It’s a big piece of research but it needs to be done – and done very early in this election cycle. This needs to look at membership levels in local parties – current and historic, the campaigning resources those local parties have, and the results in all elections over the last 15 years. We should be looking at demographics and local contexts and opposition in all parts of Wales to establish which areas could potentially be fertile ground for us and where we could build or rebuild a local presence. Local parties need to be asked for their views and supported in developing their own strategies for growth.

At a constituency level, Brecon & Radnorshire is the clear target at the next set of national elections. We must get it back. We need to not only work our other three traditional target seats, but also build our presence in a few other ones too. We cannot have yet another election where simply retaining our deposit is seen as a positive result in an area. If community politics is something we believe in and something that works at a local level, then we need to be visible in more communities than we are now. Otherwise any national focus on this aspect of our party simply looks unbelievable outside of a select few areas.

We need to have functioning regional campaign committees with regular meetings, ones not dominated solely by those with a vested interest in the traditional target seats. Our finances are ever dwindling, so we need to present a clear strategy for revival to the federal party and demand that they back us with the necessary resources to achieve this.

It’s time to put the party’s recovery first – to think about what we stand for, to develop an adaptable communications strategy, a stronger digital presence, and candidates and local parties that feel more capable, confident and supported. We need a deeper pool of candidates for all levels of government full stop. We need to build our university societies. We need to find out what skills our members have and utilise them – or rather get them to want to let the party utilise them. We need to find out what skills our members might want to have and help them develop. We need to inspire our members, train them, and go and get new ones and train them too. We can’t simply bundle people out into the street to deliver leaflets and knock on doors with limited explanation as to why, and then wonder why many of them don’t come back. We need some big personalities willing to drive the party forward but with the desire to put the party’s ambitions and not their own first. We need new ideas and we need to utilise existing ones that work. None of this will be easy, particularly with limited finances and without the staffing support we’ve had in the past. But it’s time to be less myopic.

Next year’s local elections are crucial for rebuilding the party. But our local election campaign efforts need to be more than just hope for the best. We need a clear plan for how we intend to win and where we intend to win. Local parties need to be motivated and supported by the central Welsh party to effectively target and campaign. We need to be doing this right away – if not already.

In areas where we have councillors, we need to keep them and to gain more. In areas where we had councillors, we need to gain as many of them back as possible. Whether the strategy is to be bold or cautious in how many seats are worked – it needs to be clear why. We need to make it clear in people’s minds why they should vote for us and our candidates and not for anyone else. In areas where we lack historic strength, we still need to be standing in as many seats as possible and targeting where we can. And we need local parties to work together and support each other where they can. That means drawing in activists from areas where we have less chance of success, but not without genuine gratitude and without reciprocal help provided where needed.

Local issues matter and are what typically wins us seats. Stick to that. But too often it fails to translate to votes beyond a council level and too often we fail to capture voters more swayed by party branding than local champions – because we simply never tell them anything about us. Anything remotely ideological is written in platitudes and we simply don’t give anyone a reason to identify with us. Perhaps it’s time to argue and inspire just a little bit more than we do now – at least sometimes. Because the other parties are doing it.

Ultimately, the party needs to think about what it would ideally like to look like and what it would ideally want Wales to look like. It needs to think about what it wants to achieve electorally and legislatively. And then work backwards to see how it can get there.

Maya Forstater judgment: A victory for liberal values

Maya Forstater has won her appeal. Consequently, it is now clear that gender critical beliefs are protected under the Equality Act. Equally so are beliefs about gender identity. It is not a judgment for or against either belief (the judgment makes very clear that it expresses no view on the merits of the debate). Rather, it is a judgment that reasserts the importance of freedom of thought and expression; the need to tolerate different views in a democratic society; and the principle that nobody can be compelled to express a belief that they do not hold.

Maya Forstater’s case

To begin with, the case had nothing to do with her (or anyone’s) right to be transphobic to people at work or anywhere else. Between 2015 and 2018, Forstater worked as a Visiting Fellow for a think tank (the Centre for Global Development) on a consultancy basis. During that time, she had never been accused of being transphobic to anybody at work. She didn’t even have any trans colleagues at work. She has in fact been quite clear that she would neither harass nor misgender anybody at work or socially. What some colleagues (at a separate US office) objected to were views she expressed on social media relating to proposed changes to the Gender Recognition Act and the inclusion of gender fluid Pips/Philip Bunce in a Top 100 Female Executives list. As a result, her contract was not renewed.

She challenged the non-renewal of her contract at an employment tribunal in 2019, on the grounds that her dismissal constituted discrimination against her beliefs. She lost, with the judge ruling that her ‘gender critical views’ were “incompatible with human dignity and fundamental rights of others” and that they did “not have the protected characteristic of philosophical belief” under the UK Equality Act.

That judgment can be read in full here: https://assets.publishing.service.gov.uk/media/5e15e7f8e5274a06b555b8b0/Maya_Forstater__vs_CGD_Europe__Centre_for_Global_Development_and_Masood_Ahmed_-_Judgment.pdf

Supported by both the Equality and Human Rights Commission and Index on Censorship, she appealed the judgment. She won – an outcome widely predicted by most people with any knowledge of the law.

The judgment can be read in full here: https://assets.publishing.service.gov.uk/media/60c1cce1d3bf7f4bd9814e39/Maya_Forstater_v_CGD_Europe_and_others_UKEAT0105_20_JOJ.pdf

The case was about having her belief protected – which is, in short, that someone cannot literally change their biological sex. Put in context, as set out in her own sworn witness statement to the court, it is this:

“My beliefs in relation to transgender people”;  “This means I believe that everyone should be free to live as they choose without harassment or discrimination….. I am very aware of the challenges and the discrimination that trans people face… I do not harbour any ill-feeling towards people who do not share my belief, or who identify as transgender or transsexual. Nor would I would seek to humiliate or harass anyone because of their transgender identity or their “gender nonconforming” gender expression. I believe that transgender people can be included in public life, and their human rights protected, while recognising that in some situations — such as in sexual relationships and reproduction, healthcare, demo­graphic statistics, bodily privacy, sports and single sex provisions that exist to repair the historic marginalisation of women — it is sex that matters.”

A High Court judge quashed the original ruling on the grounds that it had ‘erred in law’ in concluding that Forstater’s views were not classed as a philosophical belief, which should attract protection under the Equality Act. The original tribunal judge had found Forstater’s views to be incorrect scientifically, absolutist, and necessarily harmful, so therefore ‘unworthy of respect in a democratic society’. The appeal tribunal rejected all three findings – ruling that the tribunal “could be said to have failed to remain neutral” in getting into the scientific debate in the first place; that the description ‘absolutist’ was both incorrect on the evidence and irrelevant as to whether a belief should be protected or not; and that whilst her beliefs may be offensive to some they could not in all circumstances be considered harmful – essentially that the potential for offence cannot be justification for removing protection for a belief altogether. The Judge ruled that Forstater’s belief in the importance of biological sex “did not seek to destroy the rights of trans people” and “did not get anywhere near to approaching the kind of belief akin to Nazism or totalitarianism” which fall outside the scope of protection from the act.

Forstater’s case will now be returned to the lower employment tribunal to be heard, with a judgment made as to whether her contract was not renewed solely because of her belief so was therefore a discriminatory act.

That so many seem to have misunderstood this judgement and what the case was about to begin with is deeply depressing.

The right to hold a belief

The case was about the right to hold a belief. That’s it. It’s significance is in clarifying the right to be able to disagree, and to do so without reflexively affixing hateful motivations to those that do. It’s a reminder that human rights are for everyone, not just those who share the same opinions.

What the judgment also makes clear is that someone with gender critical beliefs is not exempt from the law of harassment and that trans persons cannot be discriminated against or misgendered with impunity. This is extremely important to note, though was never actually in issue. It was in fact argued by Maya Forstater’s own QC in his submissions to the court.

The judge in the appeal described Forstater’s belief as ‘widely shared’. Whether rightly or wrongly, public opinion polls, when questions are asked unambiguously, confirm this to be the case – with a large number of ‘don’t know’ responses to many particular issues in the general debate around sex and gender also. Evidently many of the issues are not seen to be simple or settled – or even well understood. Engagement and good-faith discussion from all sides is therefore vital.

As for why, I can’t do better than this summary of John Stuart Mill’s defence of freedom of speech.

‘Mill argues that free discourse is a necessary condition for intellectual and social progress. We can never be sure, he contends, that a silenced opinion does not contain some element of the truth. He also argues that allowing people to air false opinions is productive for two reasons. First, individuals are more likely to abandon erroneous beliefs if they are engaged in an open exchange of ideas. Second, by forcing other individuals to re-examine and re-affirm their beliefs in the process of debate, these beliefs are kept from declining into mere dogma. Along those same lines Mill wrote, “unmeasured vituperation, employed on the side of prevailing opinion, really does deter people from expressing contrary opinions, and from listening to those who express them”.’

How not to do a media interview – courtesy of Benjamin Cohen, CEO of Pink News

There’s been a lot of coverage already about Stonewall and gender identity in the past few weeks. Indeed, there’s been much written about the topic for far longer than that too. Madness probably lies in attempting to add to it. So, all I’ll say of my own view is that I think it’s a very sensitive issue, but also one that’s more complicated than many with strong feelings either way are typically willing to accept.

Yesterday morning, Justin Webb of the BBC Radio 4 Today programme hosted a brief segment about Stonewall, featuring Simon Fanshawe, a former founder now critic of Stonewall, and Benjamin Cohen, the CEO of Pink News (effectively taking Stonewall’s place as they declined an invitation to take part). The recording below is only 8 minutes long and should be listened to in full, but it’s the latter’s contribution that serves as an example of just how not to do an interview with the media if your aim is to persuade people of your position.

Some tips to take home:

  • Don’t begin by aggressively criticising the interviewer and their organisation for a lack of representation in the participants, if: (a) you don’t also consider who else isn’t being represented (b) you’re the one who decided to put yourself forward to take part.
  • Don’t make assumptions, especially if doing so might make you look like a hypocrite.
  • Don’t deliberately avoid answering questions.
  • Don’t lie when you eventually do answer questions.
  • Don’t resort to doing the exact thing your critics claimed you would do only a few minutes before.
  • Don’t after the interview go on social media and blame everybody but yourself for how the interview went.

When your stance is no debate, don’t be surprised to find that you’ve forgotten even how to debate. And don’t be surprised to find that the debate has actually carried on without you.

Batley and Spen by-election: What’s liberal about capitulating to extremists?

In March this year, a teacher at Batley Grammar School was suspended after cartoons of Muhammad (from the satirical French magazine Charlie Hebdo) were shown in class during a discussion about press freedom and religious extremism. Days of protests from a relatively small group of Muslims (allegedly parents) led to an unequivocal apology from the school for the offence caused and a promise not to use such images again.

The story was covered extensively in the national news, but the silence from liberal commentators – and indeed the Liberal Democrats – was deafening.

Earlier this week, journalist Peter Oborne published the following article:

https://www.middleeasteye.net/opinion/uk-batley-cartoon-row-muslim-parents-vindicated-media-silent

For the author of a widely acclaimed book about political lying and ‘the assault on truth’, his description of an independent report into the matter as a vindication of the parents is somewhat surprising. His article links to the executive summary of the report’s findings, which can be read below:

Just how independent a report by the Batley Multi Academy Trust could ever be – when they would naturally be under immense pressure not to inflame the local situation further – is open to debate. But regardless, the executive summary barely mentions the parents at all, so how exactly it vindicates them is unclear. It certainly doesn’t make the claim, as Peter Oborne has done in a tweet despite much photographic evidence to the contrary, that the ‘mob outside the school was the British media not the parents’.

What the summary does say quite clearly is that the teacher did nothing wrong in showing the images, and states only that it is not ‘necessary’ to use them in the future (they had in fact been used without issue in previous years). The summary says nothing about whether the parents were justified in being offended, only that they were.

Of course the lesson could have been done without the images, and could be done without the images in the future – but the question is, why should it?

Aside from the fact that images of Muhammad are not actually forbidden in Islam (despite interpretation by many Muslims that they are); even if they were – we do not have blasphemy laws in this country. The teacher’s intention was to educate pupils about racism and blasphemy (that’s according to the pupils themselves in a petition defending him, and the report above). The reaction shows exactly why such a lesson was necessary. As others have said, schools are supposed to teach people how to think, not what to think.

For simply showing a cartoon of Muhammad in an educational context, the teacher and his family had to go into hiding because of threats made against him by religious extremists. Instead of defending him, his school and union effectively threw him under a bus. Labour’s Tracey Brabin appealed for calm, stating that ‘no teacher should be facing intimidation or threats’, but still went on to ‘welcome the school’s apology and recognition of the offence this has caused.’

There’s a growing tendency within the so-called progressive left on many issues to be just as intolerant as the right when it comes to differences of opinion; to be prone to groupthink; and to elevate feelings above reason and critical thought – at times it’s less channelling the spirit of the enlightenment than the spirit of Mary Whitehouse. It’s often asked how the Liberal Democrats are different to other parties. It’s not always clear what the answer is. But I know what should distinguish us – and that’s our liberalism: a philosophy that is open minded and rational, and which defends the right to free speech and critical discussion in a secular, democratic society. No one has the right not to be offended. Dogma – religious or otherwise – is not liberalism. Capitulation to any group that ever claims offence or upset is not liberalism.

Some people have been quick to criticise our commitment to progressive values because we aren’t standing down for Labour in this by-election – yet are oddly silent when pointed out that Labour haven’t stood down in Chesham and Amersham either. With the national party rightly focused on trying to win there, our aim in Batley and Spen should be to at the very least retain our deposit this time around. If Labour manages to lose a seat they’ve held since 1997, that’s all on them. But if we are too cowardly to have anything at all to say on such a core liberal issue, then what’s the point in us standing at all?

When statistics have an agenda: The difference between lobbyists and academia

Is rape sentencing misogynistic?

The online news organisation National World (no, I’d never heard of them either) published a series of articles this weekend examining rape sentencing data over the past few years. One piece of research concluded that ‘rapists of men and boys are receiving tougher sentences than those who attack women and girls’. As a result of this research, spokespeople from the Centre for Women’s Justice and the Fawcett Society have called for an urgent investigation, musing that ‘misogyny’ or even ‘homophobia’ might be behind the discrepancy. The article can be read below:

https://www.nationalworld.com/news/uk-news/rapists-of-men-and-boys-given-tougher-prison-sentences-than-those-who-target-female-victims-3253087

The figures do show that the average sentence for male rapes in 2020 was almost two years longer than the average sentence for rapes where the victim was female. And the figures do show that for victims aged 16 and above, the gap widens to two years and five months. So, shocking stuff then. Only if you look a bit closer at the figures, it’s not really a fair assessment.

Full credit for this analysis goes to Gavin Hales, a Senior Associate Fellow at the Police Foundation – you can see the details here:

https://twitter.com/gmhales/status/1398327154379837442

As his analysis of the data shows, sentencing has actually been broadly equal over the past 11 years – for male and female victims aged over 16 and between 13-15, up until 2018 it was in fact almost identical. The differences in the past two years can largely be explained with reference to the ages of the victims and a huge disparity in sample sizes – exacerbated by the sharp drop in convictions overall (due to delays in the system). What the article masks is the fact that male rape victims were much more likely to be children – in 2020 there were 35 immediate custodial sentences for raping a male, of which only 4 victims (11%) were aged 16+ (yes that’s right, 4!). Whereas, of the 452 sentences for raping a female, 242 victims were aged 16+ (54%). Further to that, the fact that the average sentence for perpetrators of rapes of male victims aged 13-15 in 2020 was 45 months longer than in 2019 suggests the profile of offences was very different.

As Gavin Hales put it, ‘the devil is in the detail’. It’s one giant leap to assume ‘misogyny’ without putting the figures into any real context. The reality is that the facts of each criminal case can never be the same. Statistical data when it comes to sentencing will therefore always carry some limitations. The limitations in this data though really should have been obvious and the way it has been presented by National World – and those from the Centre for Women’s Justice and the Fawcett Society who should really know better – is deeply misleading. Based on the reaction from the ‘journo of the year’ who carried out the research when challenged on it, that would seem to have been the intention.

Are some offenders really being ‘let off’ for rape?

National World also published the following, equally shocking, article:

https://www.nationalworld.com/news/crime/the-shortest-prison-sentences-given-to-convicted-rapists-by-judges-in-england-and-wales-last-year-revealed-3254691

‘Revealed: Almost two dozen rapists got way with less than four year in prison last year, official statistics show’. Citing sentencing guidelines, where the minimum recommended sentence for rape at the lowest category is 4 years (bear in mind, the maximum sentence is life and the average sentence is 9 years, 9 months), we readers are expected to feel suitably outraged as they list all the cases where the sentences for rape fell below the minimum.

However, the list is worse than useless without knowing the actual details of each case and why exactly those sentences were given. The article fails to provide any of this. I spent about an hour searching online and whilst unable to find most of the cases, I was able to find the following three within the first 10 minutes. As you’ll see, the law can actually be a lot more complicated than headline figures allow.

“A white male aged 18 to 20 was given a suspended sentence in North Wales after raping a girl aged under 13.”

https://www.dailypost.co.uk/news/north-wales-news/teenager-banned-north-wales-town-19072268

The 18-year-old male had committed the offence when he was ‘younger’ and the victim was aged seven or eight. He pleaded guilty to the offence. There are no details about what age he was when he committed it, but if he was much younger then that is probably why.

“A white man aged between 21 and 24 was sentenced in Greater Manchester to 20 months for raping a girl aged between 13 and 15.”

https://www.gov.uk/government/news/21-year-old-manchester-rapist-sentenced-for-longer

The 20-month sentence was later increased on appeal to 3 years. That even after appeal the sentence remained below the minimum would suggest that the facts of the case are more complicated than would immediately seem.

“In South Wales, a man aged 70 or over of unknown ethnicity was given an absolute discharge for raping a woman aged 16 or over. That means they were convicted but no punishment was deemed necessary, or that to impose one would be inappropriate.”

I initially mistook the above case for this one:

https://www.itv.com/news/wales/2015-08-05/no-jail-sentence-for-85-year-old-man-who-raped-schoolboy-for-seven-years

Whilst the cases would appear to be from different years, the age range of the offender and location are the same. But it proves the point that you really do need to know the facts of a case before making sweeping statements about it. A custodial sentence for an 85-year old man who had raped a schoolboy was not possible because he had severe dementia. He had been deemed by two separate psychiatrists as unfit to stand trial, so instead of the usual court case he was subject to a ‘trial of the facts’, which simply tries to find out whether something happened. A custodial sentence was neither appropriate nor available as an option.

The article also states that a further 12 offenders had their sentence recorded as ‘otherwise dealt with’. It goes on to explain that this could include a range of court orders such as compensation orders, hospital orders, or confiscation orders. Now, I can quite confidently say that nobody will have received a confiscation order or compensation order as sole punishment for a rape conviction and it’s deeply disingenuous for this article to suggest that. Equally dishonest is the dismissal of hospital orders as on par with either of them. A hospital order can be used as an alternative to prison if the court feels it to be appropriate – ie. medical professionals have confirmed that the offender is suffering from a serious mental condition that requires treatment. It’s often the case that the offender is deemed to be of such a serious risk of harm to themselves or others that they could not be safely managed in a prison environment. It is effectively detaining somebody under the Mental Health Act. It is a sentence and typically does not have a fixed end date.

Can I say that the sentences in all of those cases were justified? No, of course I can’t. I can’t even say that all of the sentences I’ve highlighted above were justified, only that they were reasoned by the judges who heard all of the evidence. And sometimes the judges do get it wrong. The fact is I don’t know anything about most of those cases, but neither does National World – evidently that wasn’t of interest to their story. It just demonstrates that journalists should be more careful of making claims without proper context. Again, sentencing must always take into account the facts of the particular case and therefore broad statistical data will have limitations that need to be recognised.

For pointing this out on Twitter to the ‘journo of the year’ responsible for the article, I was blocked.

But 20,000 women can’t be wrong?

In April this year, a study of more than 20,000 women by Victim Focus received extensive coverage in the national news, including several television interviews with the authors. Amongst its findings were that ’99.7% of women had been repeatedly subjected to violence including assaults, harassment and rape’; ‘on average, women will be subjected to at least 26 sexual crimes in their life’; and ‘half of women have suffered sexual assault by a partner whilst asleep’. You can read some of the coverage below:

https://www.lbc.co.uk/news/half-of-women-have-suffered-sexual-assault-by-a-partner-while-asleep/

https://www.itv.com/news/2021-04-30/women-subjected-to-at-least-26-sexual-crimes-on-average-in-their-lifetime-as-study-reveals-scale-of-collective-trauma

https://www.mirror.co.uk/news/uk-news/harrowing-sex-crimes-faced-997-24009471

Extremely shocking stuff. Though, perhaps it wouldn’t have had quite the impact if the findings been critically evaluated to any degree rather than simply treated as fact. The articles above are less pieces of journalism than press releases published ad verbatim. Only after the initial media hit was the actual report with the study’s key findings then released to the public. You can read it below:

What you might notice is a lack of detailed explanation of the methodology used and the complete absence of any data tables to show how the findings were reached. Maybe it’s just too much to ask from such an ‘important’ piece of research; according to the report’s authors, the full study will be available later in the year (so long after the findings have been widely reported in the news).

Their justification is that they wanted the study to be accessible. That is admirable, but simplification shouldn’t trump transparency. This is something that should be of particular consideration when it comes to how the study was actually designed. The lead author said they wanted the study to be completely different to any previous ones, in her own words: ‘Rather than use general terms like domestic abuse, which many women do not consider themselves victims of, the survey asked specifically whether the women had, for example, been “shoved”, “kicked”, “bitten”, or “thrown down a flight of stairs”.’ This could well be an innovative new approach that better captures the reality of violence against women. Or it could be a deeply flawed approach in which the results are defined by a pair of individuals with a vested interest in a particular outcome. To be honest, I know which way I’m leaning, but I simply couldn’t say for sure because what’s been released so far is impossible to properly evaluate.

One criticism that has been made of the study is a likely sampling bias. The report’s authors explicitly sought out survey respondents who had been subjected to ‘any form of violence and abuse since birth’ and the survey was widely shared across social media on those grounds. In statistical terms, it was a form of ‘convenience sampling’: a type of sampling taken from a group of people easy to contact or reach. Such sampling has its disadvantages, namely a likely bias in the type of people who choose to take part, an inability to generalise from the results, and an extreme difficulty in replicating the results in any future studies. In short, if you only ask for women who are victims, you’re most likely going to get victims.

Now that doesn’t mean that the results can’t be useful or interesting, or that the experiences of those women who did respond are unimportant. But it does mean that it is extremely dishonest to generalise the results to ‘all women’ in the way in which the report’s authors have repeatedly done so. They have tried to claim that they haven’t and have even deflected blame towards the media. It’s true that the media love to sensationalise, so they are partly right. However, it’s an unconvincing defence when their own infographics and press materials are doing exactly that too.

When challenged, they displayed a level of engagement that bordered on contempt, going so far as to call questions about the study’s methodology and possible sampling bias ‘ridiculous’. It was a bizarrely inadequate response to legitimate lines of enquiry, mostly made quite reasonably, in some instances by people with a strong background in research and academia, and in many cases by women (some self-declared feminists) as well as men.

These are all actual tweets by the lead report author:

“Just to be absolutely clear to all the sudden stats experts out there – we aren’t seeking to generalise or extrapolate to the UK population from our study so I know you’ve learned some cool new words but could you stop accusing the study of doing things it doesn’t do? Awesome.”

“LMFAO maybe go and tell them to do the study then”

“Misogyny for you. 22k women report their experiences of violence and suddenly everyone is arguing about epistemology and research methods to discredit their responses. YAWN.”

“Imagine being this confused about creating accessible key facts documents, I know that’s beyond a lot of academics but it’s deliberately simplified so anyone can read it. Don’t worry, full reports out in the summer with full stats and analysis and lots of big words.”

“Lol you lot keep pointing it out and are right… People believe Maybeline and fuckin Treseme when they poll 31 women about their cosmetics and say 71% agreed… But we study 22,419 women about violence and abuse and it comes out at 99.7% and it’s all bollocks LMFAO”

“Don’t worry if you have anger issues about women writing studies. I would suggest taking it to a supervision to get support instead of your butcher. If you work really hard maybe one day you can author your own studies & deal with mardy bellends on the internet just like me”

“VAWG study goes out Response: sample size is too small, this doesn’t prove anything mehhhh Our VAWG study of 22,419 women from representative sample: Response: yeah well… that’s still not good enough, women probably responded on purpose. Just say you don’t believe women”

A true professional.

To really demonstrate that she just didn’t get it, or rather didn’t care, the same lead author later proclaimed, ‘I now consider this to be one of the most transparent and publicly scrutinised studies ever conducted in the field’ – which would be laughable if she wasn’t so serious.

Whether because of sampling bias or survey design, some of the findings seem somewhat unreliable. I’ll go through some of the ones that jumped out at me:

Perhaps the most dubious is the claim that ‘30% [of all respondents] were forced to engage in sex acts by someone before the age of 13 years old’. 3 in 10 pre-teen girls suffering sexual abuse is pretty far out of line with existing estimates (5-10% of under 18s – according to the NSPCC, the Office for National Statistics, and the US based Rape, Abuse & Incest Network). So, you’d think it might strike the report’s authors as something of an outlier and indicate that they should take concerns over sampling bias just a little more seriously.

The report claims that ‘51% of women have woken up to a partner sexually assaulting them‘ but fails to provide any data to show how that figure was reached. This is somewhat surprising considering it was probably the main finding pushed to the media. What was asked? What were the possible answers? Did 51% of women really say that they had woken up to a partner sexually assaulting them or were many of the answers instead redefined by the authors as ‘sexual assault’? Again, is it the case that sampling bias has influenced this finding? The report simply doesn’t provide the information necessary to make any sort of evaluation.

Of women before they were 18 years old: ‘70% were slapped, punched or hit by someone’. The obvious question is ‘by who?’ Followed by, in what context? And does this include being smacked by a parent? Are they only referring to men, or does this include other children – including other girls? Again, the report simply doesn’t say. It’s a statistic so vague as to be useless.

Of women before they were 18 years old: ‘50% were sent sexually offensive or violent messages online’. But how does this tally up with only 42% of respondents being aged under 36 and the internet/social media only really taking off within the last 20 years? Unless this is some sort of sub-sample, it simply can’t add up.

98% disagree with the statement: ‘I feel I got justice for what was done to me’. But who answered this? Those who made a report to the police or everyone – including those who, as the authors said in a video released alongside the report, don’t consider what happened a crime? Without context the question is meaningless.

If it sounds like I’m belittling violence against women and girls, it’s not my intention. It really isn’t. But stuff like this undermines genuine research and serious efforts to address the problem.

And did any part of the mainstream media raise any questions or challenge anything about the research? no. The figures were just blindly accepted. Just like the articles about rape sentencing by that ‘journo of the year’ were blindly accepted by her Editor. And as outlined in my last blog piece – https://democracycoma.wordpress.com/2021/05/26/performative-justice-tough-on-crime-rhetoric-and-intellectual-dishonesty-same-labour/: just like conviction figures for rape have now become little more than a political weapon, generally not even understood by those wielding it. It’s part of a worrying shift to where nothing is ever considered in context, complexity is deemed too difficult to deal with, and nothing is ever critically evaluated or challenged – particularly so when it comes to anything to do with violence against women and the law.

There’s a difference between lobbyists and academia. There’s a difference between sensationalism and objective reporting. For some, what matters is narrative not fact – and that benefits nobody but themselves.

Performative justice, ‘tough on crime’ rhetoric and intellectual dishonesty – Same Labour

The Man Who Won’t Be King

Keir Starmer is having a hard time as of late. Many dislike him because he’s not left enough, others because he’s too left; some say he lacks charisma, vision, decisiveness, or a sense of direction. I dislike him because he’s a shameless hypocrite.

His legal career is storied – from a human rights lawyer and defence advocate in a number of notable cases, to the Director of Public Prosecutions and Head of the CPS; he’s clearly a very intelligent man and at his core, a decent man. But for all his legal background, ‘forensic’ mind, and apparent commitment to justice, when it comes to Labour’s policies and approach, we’re right back to the Blair years.

He’s never been exactly faultless. Whilst Head of the CPS, the police were told to start with the presumption that all complainants in sexual cases ‘must be believed’ (which isn’t quite their role in an investigation); Operation Midland and fantasist Carl Beech the natural and hugely expensive consequence. Earlier this year, as Labour leader, he spoke out against the liberalisation of drug laws, arguing against all evidence that the government’s position is ‘roughly right’. For someone with a strong background in the legal system to have not a single new idea for dealing with the problem is hardly inspiring stuff. But Labour’s public positioning on law and order over the the last few months has served only to remind me why I don’t vote for them to begin with.

Labour are taking a strong stance against the Conservative government’s Police, Crime, Sentencing and Courts Bill, which is good. But they only decided not to abstain on the bill a few days before it’s second reading, when it became politically expedient to do so after a backlash against the Metropolitan police. Disproportionate controls on the right to protest clearly weren’t much of a concern to them before then, nor were any of the other unjustified and draconian elements of the bill. Their riposte to politically inspired evidence-free ‘tougher’ sentencing has been more politically inspired evidence-free ‘tougher’ sentencing of their own. Sensing a gap in a very topical market, they’ve pushed hard on policies to address the problem of violence against women, going so far as to cite its absence from the bill as their main reason for opposing it.

Are there issues with violence against women in this country? Are there problems with how our justice system sometimes deals with these issues? Absolutely. But whilst some of their MPs may have very strongly held and sincere feelings on the matter, Labour’s solutions appear to be mostly performative and opportunistic. ‘Tough on crime’ rhetoric and new laws that do little other than replicate existing ones would seem to be their order of the day.

Something Must Be Done

Labour’s solution to most problems – real or perceived – is typically a new law (this is the party that introduced more than 3600 new criminal offences when last in office). New laws are eye-catching and give the impression that action is being taken – and as an added bonus, they show just how much Labour cares about an issue. If ‘something must be done’ then Labour wants you to know it’s doing it.

The problem is that the law is generally far more complicated than any earnest press release or 280-character twitter post allows. Of the raft of recent policy proposals to tackle violence against women, once you look at the details, few appear to have been that well thought through.

Labour are committed to making misogyny a hate crime (I know the Liberal Democrats are too). Whatever anyone’s instinctive feeling on the policy – of course hatred of women isn’t acceptable, but it’s arguably also the case that interpretation of existing hate crime law has gone further than ever originally intended – the vagueness in its definition and the potential for unintended consequences should allow for more critical discussion than it seems to.

Labour are also calling for a new law against street harassment – despite such offences already seeming to be largely covered by existing laws. They point to similar legislation in other countries but aren’t very transparent about which model they might wish to emulate here. To take two of those countries: in Belgium it took four years before anybody was actually prosecuted under the legislation and in that case the victim was a policewoman. In contrast, over 400 on-the-spot fines were handed out in France in the first eight months. So, what exactly would this policy look like? And have similar laws in other countries reduced the number of women being sexually harassed in the street? I’m asking those questions because I don’t know the answers. Labour certainly hasn’t provided them in any of their twitter graphics.

Perhaps more substantial a policy is their proposal to introduce a register of serial domestic violence perpetrators and stalkers – there’s certainly a clear need to do more to protect victims here. However, the details remain somewhat vague – at least those that have been shared publicly. It’s been suggested that this would operate in a similar way to the current register for sex offenders, yet there’s little evidence that the existence of said register prevents reoffending or protects the public. The scope of the sex offenders register is also unarguably wide – anybody convicted of any sexual offence goes on it, and the length of time they remain on it is based solely on the length of sentence  rather than any assessment of actual risk. So, there are questions to answer: How do they define ‘serial’? What would this register do that the current system for monitoring such offenders doesn’t? And how would this ensure victims of domestic violence or stalking are safer than they are now? I admit I’ve not spent hours looking at this, but I have spent some time and again I’m none the wiser as to the answers to those questions.

Though not included in their proposals, it was even mooted recently that taking a photograph of a woman breastfeeding should be a criminal offence. This was suggested after Stella Creasy spoke about an incident where she caught a teenage boy laughing after he appeared to have pointed his phone at her whilst she breastfed her baby in public. No, that is not acceptable behaviour, but is this a widespread problem? Are many people doing this? For those that are or would, don’t existing voyeurism laws provide criminal sanction? As unpleasant as that incident may have been for her, what Stella Creasy appears to have advocated, whether she meant to or not, is the criminalisation of immature teenage boys. I’m not convinced that would be a beneficial solution.

Chris Bryant recently lauded the success of his own private members bill on Assaults on Emergency Workers (passed in 2018), deriding the ‘clever lawyers who said it was a waste of time and would never be used’. Cue every ‘clever lawyer’ on Twitter pointing out that they were in fact right. With no change in the average sentence length and no decrease in the number of emergency workers assaulted, there’s little evidence that anything has changed other than the name of the offence. As one person commented, ‘It’s like comparing how many Snickers were sold the year after it replaced Marathon’.

The law is a complicated thing – but it’s a real problem that many politicians of all stripes often don’t really understand the laws they are proposing and voting on.

Those Who Should Know Better

What’s an even bigger problem is when you have politicians who clearly should. Take Harriet Harman – it’s truly hard to believe that she’s a qualified solicitor sometimes. She may be the mother of the house, experienced and well-respected, but she’s also running a side-line in muddled legal rhetoric. It’s hard to know where to start.

Just a few weeks ago she commented on a gross negligence manslaughter case in which a woman accidentally died after a drug fuelled BDSM session, posing the question, ‘why is this not murder?’ – a question that any A-Level law student would know the answer to and which she clearly knew the answer to. She was using it to make a point about the so-called rough sex defence – which never actually existed as a defence to begin with and the change in law she helped enact last year makes little practical difference to anyway. A little earlier this year, she inserted herself into another manslaughter case, in which a man in his 70s strangled his wife to death and successfully pleaded diminished responsibility, receiving what would on the face of it seem to be quite a low five-year sentence. Despite having heard none of the evidence the judge who made the decision had heard, it being very clearly accepted by all parties to the trial that there had been no history of domestic violence in the relationship, and the victim’s own family not supporting an increase in sentence length – Harriet Harman knew better. She made a big fuss in the media and referred the sentence to the Court of Appeal on the grounds that it was unduly lenient. The Court of Appeal disagreed with her.

She has also been extremely vocal in her campaign to end the use of sexual history evidence in rape cases: a blanket ban is what she is calling for – even if such evidence might be relevant to the case and even though it’s use is already extremely restricted. Miscarriages of justice be damned. She’s predictably also expressed difficulty with the idea that complainants in rape cases might ever have to hand over their mobile phones as part of police investigations. There has never been a blanket requirement for complainants to hand over their phones. There has been inconsistency in how the police have applied the practice, with some complainants having their phones taken unnecessarily and kept for far longer than necessary (this also applies to both defendants and other witnesses). It is absolutely right that the issue has been highlighted – except that’s not really what’s happened. Fuelled by people like Harriet Harman, the narrative has been one of ‘digital strip searches’ and traumatised victims having their phones examined for no reason. The reality is that the law allows mobile phone data to be examined only when deemed relevant to the case, and only data relevant to the case is then disclosed to the defence. Sometimes it’s very relevant – Liam Allen can attest to that.

Those Who Should Really Know Better

In a tweet about the police bill, Keir Starmer compared ’10 years for attacking a statue’ to ‘5 years for rape’. The Secret Barrister was swift in their criticism, explaining that what Keir had done was compare the maximum theoretical sentence for damaging a statue with a figure far below the average sentence for rape. In their words, “this is a bad point that does nothing for public understanding”. Still, Keir’s tweet has now received over 12 thousand likes and two thousand retweets. The intended audience is suitably outraged. And whilst that section of the police bill may well reflect distorted priorities (again the words of The Secret Barrister), the word statues isn’t even used. To receive anywhere near a ten-year sentence, someone would have to do a lot more than simply ‘attack’ a statue. It’s intellectual dishonesty at its finest.

Labour have since pushed hard on tougher sentences for rape, ignoring the fact that the police bill already  intends to make prison sentences longer, and even though sentences for all serious offences have increased significantly in the last decade (with no decrease in crime rates). As Director of Public Prosecutions, Keir openly questioned whether the heavy sentences given to the London rioters in 2011 worked as an effective deterrence, and even Jess Phillips was forced to admit during a recent TV interview that longer sentences don’t really achieve anything. But now Keir and his party are (once again) all about being tough on crime. The average sentence for rape according to Justice Secretary Robert Buckland is currently 9 years, 9 months – so above the minimum 7 years Labour now seem to have settled on as a policy anyway.

Labour are also proposing custodial sentences for those who name victims of rape and sexual assault, as well as whole-life tariffs for those who rape, abduct and murder a stranger – sentences that are already available if judges feel them appropriate. The lack of regard for judicial discretion and the principle of sentencing based on the facts of a particular case should concern someone with Keir Starmer’s understanding of the law – but he’s a politician now, so it doesn’t.

Labour’s misrepresentation of rape statistics, without even addressing the reasons for that seemingly low conviction rate, should also concern that ‘forensic’ mind of his. But again, it doesn’t. The narrative of rape as being ‘effectively decriminalised’, as many Labour MPs are now happy to promote (including David Lammy, also a former barrister), is misleading to the point of outright dishonesty.

The CPS charged 65% of rape complaints referred to them last year. The conviction rate in court was 68%. Both of those figures are high in comparison to many other offences. Much has been made of the drop in the raw number of prosecutions in the last few years, but this is largely because of delays in the system – it’s less a case of the Police/CPS deciding not to charge more often, rather it’s a case of them not yet making any decision at all. The pre-charge period in rape cases has more than doubled in length since 2011. Is the Labour party talking honestly about why this is happening and what should be done about it? No.

The difference between the number of rape complaints made and the number of prosecutions is also far more complex than typically made out. Putting aside the frequently overlooked fact that not every single complaint will be true, the reasons for attrition are numerous and many are unrelated to any failure within the criminal justice system. For a start, of the 55,000 complaints of rape made last year, more than 21,000 were withdrawn by the complainant (again for a multitude of reasons) – the majority before any charging decision was made. Is the Labour party talking honestly about this and what may or may not need to be done to tackle problems within the system? Not really.

The focus is simply on increasing the number of convictions. It’s why suggestions like ending trial by jury for rape cases (even though studies have found little evidence that juries are swayed by ‘rape myths’ and the conviction rate in court is actually increasing) are just sort of nodded along to by both politicians and the media instead of being properly reflected upon; or when the Victims Commissioner Vera Baird proposes that complainants should be cross-examined by video shortly after the initial complaint (so long before the disclosure necessary to know what questions need to be asked) as a solution to long delays, nobody challenges her on the clear impracticalities.

The focus on improving conviction rates may sound like it will help ‘victims’, it may also sound progressive – but when the reality of how the justice system actually works and why is wilfully disregarded, the rhetoric becomes quite frankly dangerous. Any issues with regard to how sexual cases are dealt with will not be improved by dropping the requirement for evidence and eroding the right to a fair trial. They will not be improved by pretending that such cases are never complicated in nature. They will not be improved by ‘tougher’ sentences. And they will not be improved by ignoring the major underlying cause of many of the problems within our justice system.

A Justice System At Breaking Point

And that’s funding. Since 2010, there have been severe cuts cross all areas of the justice system (which the Liberal Democrats enabled in coalition. In a competitive field, I’d say it’s the worst thing we did in those five years). Legal aid, the recruitment and renumeration of junior barristers and solicitors working in criminal law, the CPS, the police, courts, prisons – they’ve all been decimated by cuts. And yet the Labour Party has nothing whatsoever to say on this.

Court delays are noted, but not really addressed. The real human impact of trial delays on complainants, defendants, and those there to represent them, play second fiddle to shocking statistics and performative policy announcements. Reversing the decline in police numbers (the ones who actually investigate alleged offences) has become less of a priority. Our probation system, still emerging from the disaster of part-privatisation, is still massively overstretched, ever bouncing from one new initiative to another; yet interest in it remains superficial. Longstanding issues with disclosure in criminal cases are forgotten about. The ‘innocence tax’, where acquitted defendants of often quite humble means can end up unable to recover their legal fees, is ignored rather than seen as the scandal it should be. Recent research into how miscarriages of justice are dealt with by the courts and the CCRC (the body responsible for investigating them) – or rather not being dealt with very well – pass by without acknowledgment. Reports about how prison rehabilitation courses related to alcohol use, and as The Daily Mail put it ‘courses for psychopaths’, have been found to increase reoffending rates rather than lower them (a sex offender treatment programme was found to do the same a few years ago) also pass by unacknowledged. The state of our prisons themselves – prisoners have spent more than a year now in 23-hour a day lockdown – provoke barely a murmur of concern.

Our justice system is vastly underfunded and at breaking point. Those working in the law have been saying this for years. Many of those caught up in the justice system – victims, defendants, prisoners, family members – have also been saying this for years.

In the last few days, after not having much in the way of visible justice policy at all, the Liberal Democrats seem to have begun to echo Labour. A number of well-intended but detail free tweets about violence against women have gone out – prior to this there had been a couple of statements and speeches on the same lines. But we need to do better than this.

We know what the right-wing rhetoric in the media sounds like. Without any sense of irony, we’re told that prisons work but at the same time are not a punishment. We’re told that sentences are too soft, despite them now being longer than they’ve ever been. We’re told that lawyers, simply doing their job to represent their clients and ensure their basic right to due process is adhered to, are ‘lefty activists’. We’re told that the swingeing cuts to legal aid are justified with the deliberate misrepresentation of statistics and a sense of revulsion that it might cost any money at all for those accused to try and defend themselves. We know that the default position of large segments of the public is to be ‘tough on crime’ too. It’s instinctive. And when not even the politicians seem to understand how the law works, it’s understandable that the public generally doesn’t either.

The Tories pander to the ‘hang ‘em and flog ‘em’ brigade, they always will. Priti Patel’s disdain for the rule of law exemplifies their general attitude. Labour seem to think that to win again they must ‘out-tough’ the Tories – it worked for Blair – only that if they talk about the right sort of criminals and victims then that sounds progressive too. But they’re not being honest. On the whole, their proposals won’t make women safer. They won’t make offenders more accountable. And if they refuse to talk about properly funding the justice system, many of their policy pronouncements aren’t even practically achievable.

Neither Labour nor the Tories seem to have any interest in fixing the problems in our justice system beyond posturing over ‘tougher’ sentencing. There’s a gap there for the Liberal Democrats to fill if we’re interested. We don’t need to allow ourselves to be framed as ‘tough on crime’, or ‘soft on crime’, we need to be smart about justice. And we need to be brave enough to argue that.

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