Euan McColm: I could say Sandie Peggie tribunal judge Sandy Kemp was an idiot - but that would be illegal

An archaic piece of legislation makes it an offence to “murmur” (that’s “slag off” to any of you back there in the cheap seats) a judge. Grievous verbal attacks on the competence of the men and women of the bench are outlawed on the grounds that they might undermine confidence in the legal system.

That this particular common law crime has not been successfully prosecuted since 1870 is neither here nor there. I’m taking no chances.

Fortunately, there is a code used by lawyers when discussing the stupidity of judges. Much like civil servants, they confront idiocy with euphemism.

And so Kemp’s written judgment in the tribunal case of Sandie Peggie against NHS Fife has been variously described by legal figures over recent days as “bold”, “interesting”, and “unusual”.

When it emerged the judgment contained quotations that had been made up and edits of transcripts that changed their meaning, the adjectives “remarkable” and “extraordinary” were deployed.

Off the record, under cover of anonymity, senior lawyers have been more blunt.

A 312-page written judgment from a three-person tribunal panel headed by Kemp found that NHS Fife had harassed Peggie after she complained about having to share a female changing room with trans-identifying male Dr Beth Upton. Claims from the nurse of discrimination by NHS Fife – and of harassment by Upton – were dismissed.

But some of the rationale behind these decisions is baffling.

The judgment contains a number of bizarre and downright wrong assertions, including the claim that trans-identifying males pose no more of a risk to women than women do. Beyond that, the tribunal panel seems to have wilfully misinterpreted a Supreme Court ruling from April which confirmed that, in law, sex is a matter of biology not feelings.

Within minutes of the tribunal’s judgment being published last Monday, speculation about an appeal had already begun. Before the day was out, that outcome had become an inevitability.

Lawyers and feminist campaigners began to find that not only had Kemp and Co. taken an idiosyncratic view of the law but that the judgment they’d released was littered with factual inaccuracies and fabrications.

On Thursday, the Judicial Office confirmed that the judgment was being amended to remove a quote that had been made up.

By Friday, the decision had been taken not to further amend the judgment, despite mounting evidence that it contained a number of grave inaccuracies. Any new complaints about the decision would be matters for appeal.

Let’s skip the euphemisms. This is an entirely unacceptable response to a situation which is not only desperately unfair on Sandie Peggie but should concern anyone who believes in the importance of a fair and decent legal system.

The Judicial Office has been shown troubling evidence that the tribunal, under Kemp, got the law wrong and that some of the material used to support its decision is fake.

It should not be for Peggie – or another claimant – to have to go through an appeals process simply to correct glaring factual inaccuracies in a judgment. Rather, Kemp’s ruling should be withdrawn entirely, while the matter is formally investigated.

Tribunals make life-altering decisions every day and we are entitled to believe that all of those involved in the process know exactly what they are doing.

There can be no confidence that Kemp is equipped for his role until there’s a full and convincing explanation for how the judgment in the Peggie case came to be such a mess.

The Judicial Office’s explanation that the problems with the Peggie judgment are down to a clerical error is very far from good enough. Who made this clerical error? What other errors have been made? What penalties will those responsible receive?

Normally, we might expect this to be an issue of concern to Scotland’s justice secretary, Angela Constance. If – as Kemp has – a judge undermines the credibility of the legal system, then the justice secretary had a duty to speak up.

Unfortunately, Constance has her own problems with accuracy to contend with.

First Minister John Swinney is facing calls to sack Constance over credible claims that she misled parliament in a row over a inquiry into so-called “grooming gangs” (in the name of accuracy, I prefer “rape gangs”) in Scotland.

Constance is accused by opposition MSPs of misrepresenting the words of Professor Alexis Jay, former chair of the Independent Inquiry into Child Sexual Abuse, established by the UK Government in 2014.

Constance told Holyrood in September that Jay “did not support further inquiries” into child sexual abuse and exploitation.

This was not the case. Indeed, Jay has herself said so, explaining that her remarks were related to investigations in England and Wales and had nothing to do with Scotland.

Pressed on the issue during First Minister’s Question Time on Thursday, John Swinney stood by his minister, saying her comments about Jay had been “clarified”.

Jay doesn’t seem to agree but who to believe, the woman who knows what she said or the Scottish Government minister who retains the confidence of the First Minister?

There will, I fear, be no consequences for self-murmuring judge Sandy Kemp.

He, along with Angela Constance, is part of a confederacy of dunces, of an idiocracy, currently making a mockery of the very concept of justice.