Why we need a Bad Law Project

Something is rotten in the UK and it is about time the problem was named, shamed and addressed. The problem is a culture of coercion and control that is fast replacing our legal system.

Last week in the football world, there was furore after it appeared that Paris Saint-Germain’s Idrissa Gueye had withdrawn from a match because he did not want to wear a rainbow shirt expressing support for LGBTQIA+ people in football.

There is no law in the Western world that says a footballer must show solidarity with a political cause. On the contrary, the doctrine of compelled speech, found in US First Amendment doctrine, is unlawful in English law, as Lady Hale made clear in Lee v Ashers Baking Company Ltd and others [2018] UKSC 49, citing Lord Dyson in RT (Zimbabwe) v Secretary of State for the Home Department [2012] UKSC 38:  

Nobody should be forced to have or express a political opinion in which he does not believe.

Though unlawful, compelled speech is everywhere, corroding our society. British public life has become saturated with ‘correctness’ and men, women and children alike are now constantly being told which political views and causes they must support on pain of sanction (dismissal from their jobs, suspension from school, or social ‘cancellation’). Police officers, members of the judiciary, civil servants, MPs, Church of England vicars, university lecturers and schoolteachers are all routinely trained in ‘correct’ thought and punished for deviation from it.

The negative effects of compelled speech on our society are palpable – and wrong. The Soviet Union – through its own version of the current culture wars (framed as ‘the Party’ versus ‘the bourgeoisie’) – was largely successful in reorganising public life as life governed by fear. Visit the former Soviet countries today and that legacy has not completely vanished: in public, older individuals often behave in a wary and subdued manner; anxious to be home; unsure of the political implications of striking up a conversation with another person.

But as the lesson of the Soviet Union demonstrates in hindsight, the politicisation of public life is a symptom of decay not prosperity. Cultural forces that operate beyond the scrutinising influence of parliament are by definition anti-democratic. All that is left of public life is an inexorable pressure on individuals to signal allegiance and solidarity with various arbitrary causes. Any who fail to demonstrate their support for the correct political position are suddenly doomed in the moment that they fail to use the correct gesture, symbol or word. Ordinary, natural speech becomes scandalous. Nervousness abounds.   

In the UK there are signs that the legal system is slowly succumbing to the coercive culture of compelled speech. The Equal Treatment Bench Book is a manual which trains judges as to the ‘correct’ political position to adopt in court. The book delivers authoritative statements on a range of issues such as transgenderism, poverty, and race. In respect of personal pronoun use, the Equal Treatment Bench Book has been deeply controversial. For example, one woman was allegedly compelled by a judge to use a female pronoun to describe a natal male perpetrator of a violent assault upon her (the victim perceived the assailant to be male and so was forced to lie on oath).

Although the Equal Treatment Bench Book has since been amended, the process remains opaque. It has never been debated in parliament. 

The bench book is an example of bad law - political ideology masquerading as law. Bad law is imposed upon our public institutions, via HR departments and training, in the form of ‘advice’, ‘policy’, and ‘guidance’. It preaches meaningless slogans over legal principles. Lacking democratic legitimacy, it is drafted in backrooms by non-lawyers. It clings to the respectability of law and, once established, it is desperately difficult to distinguish the host from the parasite. 

What the country needs is a legal think tank that does not seek to change the law, nor use the law to bring political change, but which is committed to keeping politics out of law, exposing political abuse of the legal process and upholding the constitution in the face of cultural totalitarian trends.   

The Bad Law Project will litigate on behalf of victims of bad law, raising funds to bring cases in the public interest that will restore trust and confidence in the rule of law. It will go after institutions that discriminate against individuals on grounds of conscience or belief (or lack of belief). Belief is protected under the Equality Act 2010. We will hold employers and other bodies to account where people lawfully maintain views that sit outside current political orthodoxy. We will campaign for the home secretary to respect the Court of Appeal judgment in R (on the application of Miller) v College of Policing [2021] EWCA Civ 1926 and scrap so-called non-crime hate incidents (NCHIs). NCHIs are a policy blight on the English legal landscape, whereby anyone reported for hate is automatically recorded on police databases (where no crime has been committed). The very idea of a ‘non-crime crime’ violates every principle of good law and should never have been adopted. The ‘chilling effect’ of NCHIs was successfully challenged by Harry Miller by way of judicial review and Mr Miller will be a key strategic adviser to the Bad Law Project. 

The Bad Law Project is developing the following resources:

• An archive of useful legal case precedents and summaries 
• Educational material on human rights law in the UK context 
• A database of potentially unlawful policies people should know about, including letter templates (for writing to employers, councillors, police officers and MPs)
• Regular and up-to-date media analysis of legal issues affecting civil liberties
• Glossaries of legal terms and definitions 

Watch this space.

Laurence Fox is leader of the Reclaim Party. The Bad Law Project will be officially launched in London tomorrow 

This article is now closed for comment.