Live tweets from Day 2 of the For Women Scotland’s Judicial Review application hearing at the Court of Session in Edinburgh.
Session 1:
Good morning and welcome to the live tweets from Day 2 of the For Women Scotland v Scottish Ministers at the Court of Session Outer House. Hopefully the feed will be up shortly or this will be a v short thread.
I am tweeting remotely from home. I am not in the courtroom. Please not everything I tweet is a summary or characterisation of what is being said. It is not a direct quote unless it is in “direct quotes”.
If you would like to read a write-up of yesterday’s hearing, you can find it here.
At the bottom you will find links to the FWS and SM written arguments. The Scottish Human Rights Commission said they will link to their submission at some point today.
We have pics from court, but no sound.
We have sound!
FWS – For Women Scotland SM – the Scottish Ministers
LR – Lady Ross – presiding judge
AO – Aidan O’Neill – lead counsel for FWS
TC – Tony Convery – advocate for FWS who may be speaking first
EHRC – Equality and Human Rights Commission – intervenors in the case
SHRC – Scottish Human Rights Commission – intervenors in the case
ECHR – European Court of Human Rights – often called Strasbourg (S)
GM – Gerry Moynihan – lead counsel for SM
The hearing is expected to last 3 days. FWS want the SPS (Scottish Prison Service) policy of housing some men in women’s prisons ruled unlawful
TIM – trans-identifying man
TIF – trans-identifying femal
TG – transgender
LR alright yes
TC thank you my submission will focus on the law around the SPS guidance and policy then AO will talk.
LR okay
TC it’s not a matter of dispute that binding authority is contained in SC (Supreme Court) case of A
[takes court to A in bundle – I’ll try to find it]
TC in this case the matter was guidance issued by Sec of State under her common law powers. This was about a non-stat scheme under which police forces voluntarily participated in sharing info around people who had sex offences involving children
TC A wanted it ruled unlawful – the SC set out certain principles in appropriate ways to review guidance docs
[Found it – TC is reading]
“In our view, Gillick sets out the test to be applied. It is best encapsulated in the formulation by Lord Scarman at p 182F (reading the word “permits” in the proper way as “sanction” or “positively approve”) and by adapting Lord Templeman’s words: does the policy in question authorise or approve unlawful…
… conduct by those to whom it is directed? So far as the basis for intervention by a court is concerned, we respectfully consider that Lord Bridge and Lord Templeman were correct in their analysis that it is not a matter of rationality, but rather that the court will intervene when a public authority has, by issuing a policy, positively authorised or approved unlawful conduct by others. In that sort of case, it can be said that the public authority has acted unlawfully by undermining the rule of law in a direct and unjustified way. In this limited but important sense, public authorities have a general duty not to induce violations of the law by others.”
TC the SC goes on to set out the rationale for applying such a test and at 41 says: “The test set out in Gillick is straightforward to apply. It calls for a comparison of what the relevant law requires and what a policy statement says regarding what a person should do. If the policy directs them to act in a way which contradicts the law it is unlawful. The courts are well placed to make a comparison of normative…
… statements in the law and in the policy, as objectively construed.” TC the SC recognises where the application of Gillick may not be clear. Let’s look at par 46: “In broad terms, there are three types of case where a policy may be found to be unlawful by reason of what it says or omits to say about the law when giving guidance for others: (i) where the policy includes a positive statement of law which is wrong and which will induce a person who follows the policy to breach their legal duty in some way (ie the type of case under consideration in Gillick); (ii) where the authority which promulgates the policy does so pursuant to a duty to provide accurate advice about the law but fails to do so, either because of a misstatement of law or because of an omission to explain the legal position; and (iii) where the authority, even though not under a duty to issue a policy, decides to promulgate one and in doing so purports in the policy to provide a full account of the legal position but fails to achieve that, either because of a specific misstatement of the law or because of an omission which has the effect that, read as a whole, the policy presents a misleading picture of the true legal position.
In a case of the type described by Rose LJ, where a Secretary of State issues guidance to his or her own staff explaining the legal framework in which they perform their functions, the context is likely to be such as to bring it within category (iii). The audience for the policy would be expected to take direction about the performance of their functions on behalf of their department from the Secretary of State at the head of the department, rather than seeking independent advice of their own. So, read objectively, and depending on the content and form of the policy, it may more readily be interpreted as a comprehensive statement of the relevant legal position and its lawfulness will be assessed on that basis.
In the present case, however, the police are independent of the Secretary of State and are well aware (and are reminded by the Guidance) that they have legal duties with which they must comply before making a disclosure and about which, if necessary, they should take legal advice.”
TC so those are Gillick principles. The SPS guidance is found at the petitioners first inventory of productions at 6.2 p75 – I know the court will be familiar this is the SPS management of TG prisoners.
Reads from it: “The purpose of the new SPS Policy for the Management of Transgender People in Custody is to ensure the rights and needs of transgender people are protected while also ensuring a safe and inclusive environment for everyone in the care of SPS and those who work here. This means that additional steps and considerations need to be made for those who have transitioned or are in the process of transitioning.”
TC this is a doc of master and servant – employer dictating to employees
It goes on to discuss searching, cell accommodation, in s5 there is ref to a TG case conference: “In order to ensure the needs and rights of transgender people are met and protected while also ensuring a safe and inclusive environment for everyone in the care of SPS and staff, SPS has developed a case conference model to manage transgender people in custody on an individualised basis which adopts a multidisciplinary assessment of risk and need.”
TC reads on: “The TCC process has been designed to allow staff and transgender individuals the opportunity to discuss their placement, accommodation and other aspects of their management while in SPS custody.”
TC next par CCIA stands for Case Conference Initial Assessment – this is not a public document, but the court has asked for it to be published: “A Case Conference for Initial Assessment (CCIA) form (Annex 3) should be completed for all transgender prisoners entering custody. It has been designed explicitly for the purpose of considering transgender individuals’ placement in a prison which aligns with their affirmed gender.
The option for a transgender person to be accommodated in an estate which aligns with their affirmed gender should be discussed with the individual upon admission to custody and they should be informed of the process involved.”
[I do not have Annex 3 – the CCIA in my court docs]
TC under the “key decision” there is a reminder about a presumption against placing a TG woman into a female estate if they have been violent to women. Then is has a tick box on decision reached. They key decision that is
come to in the CCIA is which estate the prisoner should be accommodated. The whole purpose of that process is whether someone claiming the PC of GR should be accomm in the female estate or not.
LR how much does the detail matter? You’d expect a case conference – or maybe not. TC that is indeed the point. the whole premise of the op guidance is that there are certain circs when a prisoner
may be placed in the prison estate which doesn’t conform with their bio sex LR as far as you’re distinguishing between policy and guidance – what if it’s not in the guidance
TC there is a sep doc called policy, but that’s not under review, but it’s the guidance which is under JR, not the policy. The petitioner seeks a review of the guidance.
LR because it directs someone to do something
TC yes putting someone in an estate other than their bio sex
LR this guidance you say compels someone to do something unlawful
TC yes
LR so what would the effect of that guidance be?
TC suspect they would have to look at that, but we are concerned with a doc which authorises or induces illegality. the key point of A is about practical or ongoing effects. It would be for SM to see how their policy would conform with the law in the light of my lady’s judgment
[so this is about a very narrow ruling on a doc which is not publicly available which FWS say requires SPS staff to do something potentially unlawful – guidance not policy]
[TC now wants to go to SPS Equality and Human Rights impacts assessments for TG individuals]
TC AO took you to certain elements of this yesterday.
TC reading bits out “SPS’s Gender Identity and Gender Reassignment Policy was published in 2014, hence it is timely to conduct a review to assess its effectiveness and its impact on both transgender and gender diverse people in custody as well as other groups in prison who may be impacted. A range of concerns were raised with SPS and Scottish Ministers about how the previous policy had been developed, especially the lack of engagement across the women’s estate in the EHRIA process.
There were concerns from a range of interest groups about how the policy was being implemented and implications for the safety and wellbeing of people in custody. The purpose of the policy review was to develop an updated and evidence-based corporate policy position which would clearly articulate an updated intent and how this would be achieved, consistent with the obligations of SPS as a public body and as a prison service.”
TC the points I want to make is that this doc can be reviewed. It is an instruction from employers to employees (as disctinct from people who can take their own legal advice) and those employees would be expected to take direction from their employer
TC this is an attempt to provide a comprehensive statement of the legal provision.
[you can find the doc here: https://www.sps.gov.uk/sites/default/files/2025-09/HDC%20-%20Equality%20and%20Human%20Rights%20Impact%20Assessment.pdf]
TC this is firmly in the category of [Gillick] cat 3 guidance and therefore can be reviewed by the courts.
LR yes
TC once that threshold has been crossed, it is now for the court to compare what the relevant law is against what the guidance says
LR yes
TC AO yesterday said the law stopped TIMs being placed in female prisons. SPS employees are therefore “materially misdirected” by this policy, they are led to believe that bio men can be put in prisons for bio women. It undermines the rule of law in a direct way.
TC that’s my submission
LR is your position that that is a total answer to the respondents position
TC in short, yes, but AO wants to address this – may I hand to him
LR yes
AO obliged to TC. Your ladyship’s q is exactly what I wanted to address
AO so the statement of issues which was agreed between the parties apart from statement 8 – the essence seems to be that we can’t take it to JR – it needs to be raised by an individual. We say that’s wrong. Let’s start from the beginning…
… and I’m not going to break into song, but the SPS provision of a male and female prison estate which they claim to be providing. This is centrally about how one interprets the EA2010. They interpret the EA in one way and are acting on it. We say they are misunderstanding
… the EA and we’ve tried to give them as fair notice as possible that they are doing so. They are misstating the law re the 2010 Act if they say TIMs can be put in the female estate. In order to run a sex-segregated service [speaks too fast]
AO if they’ve misunderstood what direct sex discrim is and the carve out for the female estate then they’ve got the policy wrong. The way to make it lawful is to make women only estate women only.
AO ther is a legal ob not to create a situation to create a humiliating hostile environment – those are objective tests based on reasonableness. There is an obligation on the SPS when exercising a public function that they should not discriminate harass or victimise
Which means not creating a hostile or intimidating atmos. We say they are doing that to female prisoners and we have it. The SM case appears to be confusing that individuals can take action to establish a breach from a JR in which we have standing to raise the issues which…
… we have raised, which are to do with the interpretation of the EA. So this court has to decide on whether they’ve properly applied the EA. We’re not asking for damages. We say that the court should take into account of whether a proper test is being applied by the guidance
LR in the outline you’ve just given you’ve gone on to the proper interpretation of the EA and putting evidence before the court which you’ve done through affadavits, but what is the status of those and a prior q is are you required to put forward any evidence at all?
AO this is not an abstract challenge. It’s how this works in practice and its effects so you’re not floating around answering academic theoretical qs – this is grounded in the evidence supplied in the affadavits from both sides and it has real practical effects every day.
You don’t have to make findings in fact.
LR well it’s not for this court
AO it could be if there was a class action by all the women affected by this policy
LR but not before me
AO not now no
LR so the evidence is for me to understand that this policy has real world consequences
AO yes – the SPS are saying that they are required to place some violent TIMs in female prisons and they are doing so – it’s not fantasy. It’s happening.
AO [goes to EA2010 and instructions re challenges] – the Act envisages that the Court of Session might be involved in proceedings in how the law is applied. That’s what we are doing here. As envisaged by the Act – we’re not restricted to finding…
… an individual woman bringing an individual case, as the other side are saying. We can argue this out here in this court. We know female prisoners are put on report for calling a man a man. That’s gaslighting. That’s creating a hostile environment for them.
LR in any event no issue is taken against you in respect of standing
AO yes
[AO says a lot quickly off mic]
AO I’m going to sit down now.
LR well there might be further questions, but thank you v much Mr O’Neill
LR Mr [? for SHRC]
SH we are grateful for the oppo to intervene
LR we are grateful to you and the EHRC
SH SHRC are not aligned with any partic party to this case we are not in the pocket of the petitioner or the respondent. We do not express a view through any partic ideological
… lens. We’ve set this out objectively in the eyes of the law. But we can all come to this differently. Our perspective is not ideological. And if we have not mentioned something which we don’t see is material and others do see it as material that is not because…
… we have taken an ideological perspective. I only say this because of some of the points made yesterday. We are here as a public body to assist the court and I want to make that clear and if there is any implication that we are…
… on anyone’s side or taking an ideological position I would reject that in the strongest possible terms. The SHRC is about supporting human rights and best practice in that area. We don’t deal with EA nor the interface between EA and convention rights. We cannot assist…
… your ladyship with some of the issues at the heart of this case. We have had to approach this as a human rights issue. We hope that with our experience we might be providing a different experience which forms a background matrix
plugging int your ladyship’s examination of the case. It’s also important to recognise we give consideration to the rights of all of those affected. This is not just about TG prisoners, but to the fore – female prisoners and female prison staff. There are many
scenarios. The most common situation is a trans woman being placed in the female estate. but there could be a situation where a trans man born a woman might be placed in the female estate. This calls in q the rights of the women the trans man is placed against as well as
the trans man. and vice versa.
it is as AO recognises if someone is to conduct an individualised assessment it’s important to look at everyone affected – not just the trans prisoner, but the vulnerabilities of the woman prisoner.
it might be nec to look at their appearance, how long they’ve lived in their acquired gender, whether they went through puberty in their acquired gender, their vulnerabilities, their offending history etc
you have to scrutinise all of those factors. you need to look at everyone’s rights.
First i’ll address whose rights might be engaged, secondly a positive obligation to house TG prisoners in an estate diff from their bio sex and thirdly whether a blanket policy could result in a negative breach and lastly the SPS policy
So rights engaged – female staff, female prisoners, trans prisoners – Art 8 rights are engaged, but also Arts 2 and 3 might be engaged. On rights of women prisoners…
… starting point is that segregated prisons are provided to respect needs and vulns of female prisoners. An important factor is gender-based violence. It informs the background of many women in prison and being exposed to it on an ongoing basis.
Also privacy and dignity, nature of trans prisoner being placed in female estate and rights engaged. Art 2 and 3 rights may be engaged – if a placing of a trans woman with a history of violence against women in the female estate – that engages Art 2.
Female prison staff’s rights are engaged if someone with a history of violence is placed in female estate that engages.
Re trans prisoners – the ECHR says trans ID comes under protection of Art 8 – it’s clear in the law
Mr Justice Fordham in Christianou [?] there is a helpful discussion of how this operates in submissions to him and Strasbourge partic Garco and Nico in France.
There is a restricted margin of appreciation here – it’s one of the most important rights – the right to a transgender identity.
The respect for a private life under Art 8 plainly encompasses gender id and is engaged if they were put in an environment which placed them at risk of sexual violence then it engages Art 2 and 3. And the same is true of women prisoners.
LR whilst acknowledging there are potential art 2 and 3 issues in order to prevent getting to the stage where there were a violation whereas Art 8 is a diff analysis
SH I’ll come on to that….
SH now – is there a positive obligation in one direction or another to house TG prisoners in a male or female prison. There isn’t, in my submission. In either direction. In Human Rights terms. A T prisoner’s Art 8 rights – there is no Strasbourg authority to support…
… the conclusion a prisoner must go into a prison of their acquired gender.
The established convention is that domestic courts should not extend beyond where S has gone. Can’t extend S principles. So you can’t be confident there is a positive ob to put a T prisoner in a prison of their acquired gender.
I would reject the submission that any suggestion of the presence of a TIM is against female prisoners human rights. Its about the individual circs. It’s going a long way to say there is a breach of Art 8 rights by the presence of any trans prisoner.
There has been some disco in everyone’s submissions as said by Lord Justice Holroyde in FDJ and Sec State for Justice – the observation which has excited most interest is…
“The difficulty which the claimant faces, in my view, is that it is not possible to argue that the defendant should have excluded from women’s prisons all transgender women,” he wrote.
“To do so would be to ignore, impermissibly, the rights of transgender women to live in their chosen gender; and it is not the course which the claimant herself says the defendant should have taken. The submissions on behalf of the claimant attached weight to the offending history of the transgender woman concerned; but that is a factor which the care and management policy specifically requires the LCB [local transgender case board] and/or CCB [transgender complex case board] to consider.”
Essentially what was held was that the policy required a basis by basis assessment and it only occurred when it was safe to all prisoners. To pick up on what the EHRC says – that that judgment could not survive in the light of the SC judgment….
… of course the world has moved on. LJH’s case was not that there was a positive obligation to house TG prisoners in acquired gender, he said it had to be case by case. And that is what is before this court.
The simple point I make is that what LJH says – divorced from the EA – survives in simple human rights terms.
LR yes in HR terms that might be so, but if you’re reading it with what the SC has said about the def of woman then the shift is quite significant
SH I’m only looking…
… at it from HR terms and if there is a pos ob. Okay third idea – as to whether there is a possible breach of negative obligations… if the decision is made to put a T prisoner of their bio birth it gives rise to a potential for a breach of negative obs.
So TIF prisoner in an F prison could cause harm to those around them.
Let’s look at bright line cases and whether a bright line policy is acceptable and proportionality can be carried out in the round.
I agree the case law says a bright line rule is acceptable in a certain set of facts. Those decisions arose in cases where the margin of appreciation was essentially at its widest. These decisions all arose on applications regarding qualified rights. When looking at a qual HR
… you can apply a bright line rule. If you take that view then there may be hard cases which fall on the wrong side of the line in the case of the person affected.
LR where does Art 8 come in on this
SH I’ll come back but we’re not just talkin about Art 8 in this case – we’re
… considering Art 2 and 3 rights
LR that’s why I asked that q earlier
SH if I may come back to that
LR sure
SH arts 2 and 3 are absolute – lest it be suggested that’s hypothetical – you have the determination in the Sarah Reilly case which…
… engages the Art 2 right – when risk of suicide came into play when someone was told they might be housed in a prison estate according to their bio sex
LR if the SPS has to respect Art 2 and 3 rights and are putting in place measures to ensure their safety – lets assume its
possible to put in place safety measures in a mens’ prison – more checks, different accomm. You don’t have to accom a TW in a women’s estate to satisfy Art 2 and 3 rights. The respondents might say that’s not possible when it comes to Art 8 rights.
LR it comes to the content of the right. Art 2 and 3 is right to life and treatment. Art 8 rights is about identity and self-expression
SH if that was th answer to the Art 2 and 3 point – how can one make an assessment of proportionality in a bright line situation?
SH on the generalised assessment it’s a group thing and there are always going to be hard cases. I don’t think you can have collateral damage as a result of a group policy because Arts 2, 3 and 8 are all engaged.
One would have to have a v v clear position that there was no engagement of Art 2 and 3 if you have a bright line policy. You would need to have protection in place to take that out of the picture. If it comes to that…
… it’s then a q of how one can manage this away. and it might be you have to manage this in a certain way. The suggestion of a third space might bring other issues. We are not responsible for managing prisons and we can’t say whats possible in terms of managing prisoners…
operationally and SPS might be saying they can do this. If this can be managed away the most we can say is that this is a doubtful proposition. For instance segregation. Does by managing away a Art 3 issue create another one?
People are not just segg’ed according to GI, there are all manner of reasons for segging someone. TG prisoners might have to be kept sep from other segged people – if that’s being kept on their own that might bring Art 3 up again.
[SHRC counsel is Kenny McBrearty KC so I’ll call him KM from now…]
KM there is the poss of negative obligations being breached and from the perspective of women’s prisoners – then if you put a TIM in the female estate they too have Art 2,3 and 8 rights. and if you have a prisoner in the prison which matches their sex that also…
… might bring in a negative breach.
{goes to case law – of a TW prisoner to be extradited to Romania and judge had to consider whether the prisoner could be extradited}
KM mr justice fordham cites that during a period of incarceration of 21 days before assessment with young…
… men who had committed different crimes and had different behaviours (against the background when the CPT had a specific problem with Romania). And the conc was that the 21 day holding time was going to be in breach of Art 8 in a fact-sensitive assessment.
KM all I would say is that if a court can do a RA for a foreign court, why can’t it be done in a domestic setting
LR by application of guidance?
KM yes – what’s true is that there are no S decisions which show there has been a breach of a neg obligation in either direction
KM what we’ve recognised already is that it is difficult to conclude there isn’t a potential breach of a negative obligation such as the one considered by Mr Justice Fordham. It could be considered without stretching S principles.
KM standing back from that the SHRC does not contend a breach would arrive in every or even most cases. It’s a potential that could arise in the application of a no exception policy. The wider arguments are for your ladyship to decide.
KM so in conclusion on those first three parts. In purely HR terms, the SHRC would see nothing in principle wrong which took into account the rights of all of those concerned – women prisoners, women staff and TG prisoners. Only HR law here. NOT Equality Act.
KM that should not be seen as an endorsement of the current SPS policy. These are not issues currently raised between the parties, but we have concerns with current SPS policy.
KM SHRC takes the view its critical that when looking at any policy the policy should identify whose rights are engaged and whose rights are to be balanced and the likely/possible outcomes.
KM and they should know what recourse they have if they are not engaged. The current SPS policy does not do that and might bring about results which are not compatible.
There is no specified direction to specific human rights articles. Just the unspecified rights of TG prisoners. and also some mention of safety of staff and other prisoners
Quotes: “The purpose of the new SPS Policy for the Management of Transgender People in Custody is to ensure the rights and needs of transgender people are protected while also ensuring a safe and inclusive environment for everyone in the care of SPS and those who work here.”
and “A transgender man should be considered for admission into the men’s estate if there are no concerns that his health, safety or wellbeing would be put at risk and if he has previously been managed successfully by SPS in the men’s estate based on a multi- disciplinary assessment of both risk and need.”
No consideration of how TG rights are considered and there is no mention of rights of F staff and F prisoners. Any assessment should inevitably include an assessment of their wellbeing and safety, but there is no mention of their rights.
This could lead to a non-legally qualified person to make the wrong decision. There is no mention of a balancing exercise, nor what rights need to be banished. There are no examplar or criteria.
Whilst there is no in principle problem with an individualised approach to matters one would expect all rights should be considered, they should be named and the nature of the balancing exercised should be explained. We make these observations.
LR just drawing attn to this guidance. not saying what should be decided on it
KM yes
LR okay, noted. it’s helpful to have that perspective from the SHRC.
KM unless I can be of any further assistance
LR no that’s helpful. Right Mr Scott – I think we’ll take a break till 1210.
[court rises]
[I suspect Mr Scott is from the EHRC – the other intervenor is this case. I’ll try to get his first name.]
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Session 2:
This tweet comprises the second morning session of Day 2 of For Women Scotland’s attempted judicial review of the policy of allowing some trans-identifying men to be housed in female prisons in Scotland.
Session 2 continues in the box below:
Session 3:
This is the tweet thread for the afternoon (third) session of Day 2 of For Women Scotland vs Scottish ministers.
It will start at 1.50pm. In the meantime here is a picture of FWS’s Susan Smith and Marion Calder from For Women Scotland arriving at court this morning.
The feed is live, but we currently have no a/v.
We have both! Court is sitting.
LR – right Mrs Scott
JS – AO has drawn my attention to two cases which bring out bright line issues.
[she goes to case law]
Whilst she’s doing that, some abbrevs:
FWS – For Women Scotland – also petitioners
SM – Scottish Ministers – respondents
TG – transgender
PC of GR – Protected Characteristic of Gender Reassignment
TW – trans woman (male)
TM – trans man (female)
EHRC – Equality and Human Rights Commission (itnervenors)
JS – Janys Scott KC – EHRC counsel
LR – Lady Ross – judge
A reminder nothing I tweet is a direct quote unless it is in “direct quotes”. All tweets are a summary or characterisation of what is being said.
LR testing the extreme case idea – is that an exception or encompassed in a bright line idea
JS the q was could a public authority act in a way if it was going to act in contravention of rights. it is not as extreme as nec has been presented. There has to be application…
… by an authority in a convention compliant manner. So in the child abuse case a rapist bio father was disalllowed from becoming a participant in a family court case because of the art8 rights of mother and child
JS it’s a complex and nuanced picture – it has to be because we are dealing with a complicated situation
JS the general position of the EHRC is that this should be capable of being dealt with in the way in manages its estate. The EHRC is a commission which deals with Equality and Convention responsibilities. The whole structure of the 2010 Act is on the basis that HR and Equal
is complementary. It would be extremely surprising if the 2010 Act could not be enacted by clashing with HR. We do not think there is any incompatibility with the 2010 Act and HR
JS in the SM’s current provisoin, there’s no mention of FWS, there no mention of the 2011 stat framework for Scottish Prisons or the 2010 act but that means there is
no means for facing up to the problem raised by Lord Hodge which is the moment you admit males to f facility you end up with mixed sex services
JS whilst the EHRC understands the SHRC rationale it doesn’t agree with it, it respectfully parts company from it
LR the SHRC said it was limited
JS and sadly it doesn’t work – the solution proposed by is that they have to engage in their Public Sector Equality Duty and the SPS
guidance pre-dates FWS at the SC. You have to address all the issues when considering this including the TW in the men’s estate and the TM in the f estate.
[JS goes to PSED and starts to read “A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).
3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to:
a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;”]
JS this is partic relevant to sex and gender and Lord Hodge touched on this: “If, in the context of equality between the sexes, the interests of trans women (biological males) who have GRCs (so are legally female) must be considered and advanced as part of the group that share the protected characteristic of being “women”, the PSED will require data collection and consideration of a heterogenous group containing biological women, some biological males with a GRC (trans women who are legally female) and excluding some biological females with a GRC (trans men who are legally male).
This is a confusing group to envisage because it cuts across and fragments both biological sex and gender reassignment into heterogenous groupings which may have little in common. Any data collection exercise will be distorted by the heterogenous nature of such a group. Moreover, the distinct discrimination and disadvantage faced by women as a group (or trans people) would simply not be capable of being addressed by the PSED because the group being considered would not be a group that, because of the shared protected characteristic of sex, has experienced discrimination or disadvantage flowing from shared biology, societal norms or prejudice.
Whereas the interests of biological women (or men) can be rationally considered and addressed, and likewise, the interests of trans people (who are vulnerable and often disadvantaged for different reasons), we do not understand how the interests of this heterogenous group can begin to be considered and addressed.”
JS it’s perfectly possible to put men women and trans people in the same prison providing they are segregated. What they can’t do is put them in the same accommodation.
[JS ends]
[Miss Irvine gets to her feet for the SM]
Lesley Irvine – so LI
[she’s just prepping]
LI I appear with Mr Moynihan for SM – I will open submissions then I will move on to my section which is the EA2010 and then I will hand over to Mr M
This case is also about whether or not…
… lawfulness of the policy. On terminology
TG I’ve used already
TM is a born female identifying as a man
TF or TW is bio male identifying as a woman
LI there is no dispute about vulns of women in prison including by virtue of having experience male violence in the past. TG prisoners are also vuln and we have to address all vulns. It was put that a TG suicide risk was a hard case falling on the wrong side of a bright line rule
The petitioners say a man being held in a f prison is unlawful. Much has been made of the SC ruling. We accept that. We don’t think the answer to this problem lies within that decision. The answer lies within the legal framework governing prisoner placement.
Its appropriate to emphasize that HR and devolution issues march together in this case. the SM cannot act in a way incompatible with HR. I will set out the Respondents (R’s – SM) position on the EA2010
There are 4 composite propositions
– the provisions are fact-specific – conduct to be established by an individual – they cannot be invoked by a corporate body or on a hypothetical basis unless the policy is inherently unlawful. We do not accept the policy unlawful, so we say..
… this is irrelevant.
The petitioner (P – FWS) says we have a duty.
LR is not there a meaningless difference between a defence and duty?
[LI has moved an gone off mic]
[missed second proposition]
LI third cat – provisions made by P in schedule provide a shield to the defence of sex discrimination – we say it would subvert the 2010 Act to convert the schedule 3 shield into a sword for which there is no shield
LI fourth – “the Act contains a detailed series of express obligations – neg and pos. And obs mechanisms for enforcement and we say there is no basis for reading into the act any additional obs with no clear mech for enforcement”
LI the rest of my sub is around the five things the ACt is broadly doing. We give a summary of the structure at par 13 in our Note of Argument [13. The 2010 Act is not the only “equal opportunities requirement” for the purposes of devolved competence but it is the main discrimination law statute in the United Kingdom.
It is structured so as to set out the following:
(i) certain “protected characteristics” (Chapter 1 of Part 2), including “sex” (s 11) and “gender reassignment” (s 7);
(ii) the types of conduct which are prohibited in relation to the protected characteristics or some of them (Chapter 2 of Part 2), including direct discrimination (s 13) and harassment (s. 26);
(iii) areas of regulated activity in which the prohibitions are to have effect, in relation to some or all of the characteristics (Parts 3 to 7); that includes Part 3 relating to the provision of services and the exercise of public functions (s 29) and the sector specific exceptions in Schedule 3 that are given effect by s 31(10);
(iv) the means of enforcement of a contravention of the prohibitions, by individuals (Part 9);
(v) distinct provisions relating to the advancement of equality in the public sector (Part 11), including the public sector equality duty (s 149) and authorisation of positive action (ss 158 and 159);
(vi) general exceptions to the prohibitions (Part 14), including section 191 giving effect to Schedule 22;
(vii) interpretative provision (Part 16); and
(viii) various subject-specific exceptions to the prohibitions, including Schedules 3 and 22.”]
[Li also refers to the SC judgment setting out of the EA: 114. The EA 2010 is arranged over 16 parts and 28 schedules. It closely defines the various forms of prohibited conduct regulated by its provisions. It does that first by establishing “key concepts” in Part 2 and then, in subsequent parts, by creating a series of statutory torts, that is acts that are unlawful conduct in the context of certain activities. These broadly relate to services and public functions; premises; work; education; and associations. The unlawful acts have a wide coverage but there are also numerous exemptions to the unlawful acts created by the EA 2010, some of general application and others specific to certain unlawful acts or characteristics.
Individuals can enforce rights under the EA 2010 in tribunals and courts. The EHRC has a role in taking strategic and certain enforcement action under the EA 2010. 115. So far as key concepts are concerned, Part 2 explains and defines the forms of discrimination and other conduct that is prohibited by subsequent parts of the Act.
Discrimination comprises: Page 34
(a) Direct discrimination (defined in section 13)
(b) Combined discrimination because of a combination of two relevant protected characteristics (defined in section 14)
(c) Discrimination arising from disability (defined in section 15)
(d) Gender reassignment discrimination: cases of absence from work (defined in section 16)
(e) Pregnancy and maternity discrimination: non-work cases (defined in section 17)
(f) Pregnancy and maternity: work cases (defined in section 18)
(g) Indirect discrimination (defined in sections 19 and 19A) Other prohibited conduct comprises harassment (section 26) and victimisation (section 27) though these are not forms of discrimination for the purposes of the EA 2010. 116.
Section 25 is headed “References to particular strands of discrimination” and sets out what is meant by references to characteristic specific discrimination. It covers the nine “protected characteristics” under the EA 2010, namely: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. Relevantly for our purposes, it provides that: “(3) Gender reassignment discrimination is—
(a) discrimination within section 13 because of gender reassignment;
(b) discrimination within section 16;
(c) discrimination within section 19 or 19A where the relevant protected characteristic is gender reassignment. Page 35(4) Marriage and civil partnership discrimination is—
(a) discrimination within section 13 because of marriage and civil partnership;
(b) discrimination within section 19 or 19A where the relevant protected characteristic is marriage and civil partnership.
(5) Pregnancy and maternity discrimination is discrimination within section 17 or 18. …
(8) Sex discrimination is—
(a) discrimination within section 13 because of sex;
(b) discrimination within section 19 or 19A where the relevant protected characteristic is sex.
(9) Sexual orientation discrimination is—
(a) discrimination within section 13 because of sexual orientation;
(b) discrimination within section 19 or 19A where the relevant protected characteristic is sexual orientation.”]
LI there are a limited number of duties in the Act – not limited to the PSED. There is provision for the enforcement of breaches to the act. And there is a series of exemptions – some are absolute and some are qualified. And most of those are in the schedules to the Act
LI the concept of the PC is one of the key concepts in Part 2 of the act. It is used to circumscribe its effects and stop it existing as a series of free-standing prohibitions
The meaning of sex in the act and the related terms man and woman and so male and female was settled by the SC in FWS and they refer to a person’s sex at birth – biological sex [gives refs in SC judgment to definitions and meanings of sex]
If I could v briefly take my lady to the following in the SC judgment “The definition of sex in the EA 2010 makes clear that the concept of sex is binary, a person is either a woman or a man. Persons who share that protected characteristic for the purposes of the group-based rights and protections are persons of the same sex and provisions that refer to protection for women necessarily exclude men.
Although the word “biological” does not appear in this definition, the ordinary meaning of those plain and unambiguous words corresponds with the biological characteristics that make an individual a man or a woman.
These are assumed to be self-explanatory and to require no further explanation. Men and women are on the face of the definition only differentiated as a grouping by the biology they share with their group.”
[LI says that the FWS argument is not supported by the SC decision nor the EA2010]
There are three broad categories of prohibited conduct – discrimination, harassment and victimisation. S13 makes provision in terms of direct discrimination – PCs and specific forms of descrim set out
The final two are discrim from a failure to make reasonable adjustments. There’s also a derivative form of discrim which arises from relationships which have ended. I complete the list because the index of defined expressions confirms that discrim as a defined term means…
… essentially those provisions. Various strands of discrim are also defined. S25 has references to this and sex discrimination can be direct or indirect. I mention this to set up the discussion to follow on Sched 3 that it only provides a defence to conduct on those terms.
Of the various types of discrim I have mentioned on the basis of direct discrim and so Sched 13 as engaging s3
So we are just focusing on direct discrimination. And I will take the court briefly to the requirement of two provisions relating to direct discrim and harassment which we say are the two forms relative to this case.
We say the individualised nature of the claim is obvious from the requirements which need to be set out. that less favourable treatment needs to be set out. V relevant case law is R Coll [?] vs Sec State for Justice – this was a JR re female bail hostels in London.
Claimant argued that she was being discriminated against compared to a man who could be placed in a hostel closer to home because of the distribution of accommodation.
“These judicial review proceedings were launched in January 2013, because the appellant wanted to be released to the London area, albeit not to Haringey where she had lived before her sentence, so that she could be near her family, and she feared that she would be required to live in an AP far from there. She sought declarations that (a) the lack of provision for a women’s AP in London is discriminatory contrary to the Equality Act 2010 and/or articles 8 and 14 of the European Convention on Human Rights; and that (b) the Secretary of State had acted in breach of the public sector equality duty in section 149 of the Equality Act by failing to have due regard, in relation to the provision of APs in London, to the need to eliminate discrimination against women, and advance equality of opportunity for them.”
LI she won her appeal – she made out her claim on the basis of her individual treatment
LI I will come back to that.
{takes LR to provision in the EA relevant to harassment}
LI there is no basis against the background of specific limited third party engagement on harassment to imply a third party duty of uncertain scope – yet that is the effect of what P argues for
in its Note of Argument.
LI given the requirement of S26, an allegation of harassment is not one which can sensibly made by a corporate body against a policy doc in relation to generalised evidence or hypothetical cases.
[LI goes to case law suggesting a JR is not the place to raise issues of harassment]
LR so should or could an individual claim of harassment only be raised in a sheriff’s court
LI can I come back to that
LR I don’t want to lose sight of it
[we move on]
LI now lets look at provisions of PC have an effect in law – establishing stat delicts and also PSED. There is an express pos duty in the 2010 as it relates to PC of sex. You cannot imply duty into the Act – and part of that is showing where the duties exist expressly
There are very few pos duties in the Act – and only one bearing on sex.
These are the others:
– there is a socio-economic duty (partially enforced in Wales and Scotland) – it’s a free-standing duty.
– Duty to make reasonable adjustments – not a free-standing duty.
– Disbabled passenger transport duties – free-standing.
Just to mention in passing
positive action provisions which don’t impose duties. A failure to act in their accordance would be a delict in the ordinary way. Just to conclude this submission such as it is on PSED. it’s a process-based duty. There is a power in the Act
to impose specific duties. The P has lodged the regulations but advances no case on them.
LI P says at 2.12 “The EA 2010 also imposes positive duties upon the Scottish Ministers not to allow incarcerated women prisoners to be placed in a situation which these women may, reasonably and foreseeably, consider to violate their dignity as women and/or to create an intimidating, hostile, degrading, humiliating or offensive environment for them as women.
The inability of women prisoners to object to decisions of the SPS to choose to place within the women-only designated prison estate biological males who claim the wholly unverifiable/unfalsifiable PC of gender reassignment compounds the humiliating lack of agency which these women have within the avowedly women-only estate in prison.
In giving these women no choice but to be incarcerated in the same accommodation as biological males, SPS has caused – wholly unnecessarily and eminently avoidably – what many incarcerated women will undoubtedly experience as violation of their remaining dignity as women in prison, and as creating for them – as imprisoned women – an intimidating, hostile, degrading, humiliating and/or offensive environment.”
Says it imposes positive duties on SM to avoid a situatation whereby “incarcerated women prisoners to be placed in a situation which these women may, reasonably and foreseeably, consider to violate their dignity as women and/or to create an intimidating, hostile, degrading, humiliating or offensive environment for them as women.”
Without saying where, and that’s because it doesn’t. They’re attempting to subvert the Act.
P does not argue breach of PSED. We are in territory of delictual provisions in part 3 of the Act
[delictual refers to “Relates to wrongful acts (delicts) that cause damage to property, person, or reputation.” Eg “Accidents, negligence, and intentional harm” and “Unlike contractual liability (breach of contract), delictual liability arises from a general duty not to harm others.”]
[LI is still talking about Part 3 of the 2010 Equality Act, what it means and gives effect to in law]
s29 in Part 3 establishes the delicts and is the only provision doing that in p3 and covers multiple areas including service provision, including public sector services. Those provision related to all three forms of prohibited conduct.
AO my lady, I hesitate to interrupt…
{he does so off mic}
LR I’m quite sure LI understands the basis on which it’s being pled
LI it is accepted that s29.6 applies – if that’s not the position it would be helpful to know
[AO replies off mic]
[LR has picked up on the off mic issue]
LI maybe AO can raise his prob with any issue I raise at the end of my sub and Mr M can answer if needs be
LR okay let’s do that
LI there are public sector services and there are public functions which are not services and we are talking about the latter in this case – the q arises as to what s29.6 is intended to cover. My understanding is that P accepts it is exercising a function within 29.6
… that is not the provision of a service. If it’s not a service then s29.1-5 are not engaged. Just 29.6
If it is not accepted we are in 29.6 territory it should be clear we are in that territory from the function being exercised in that case.
[god this is dry]
Here is a link to the SHRC written submission, btw: https://www.scottishhumanrights.com/news/scottish-human-rights-commission-intervenes-in-judicial-review-brought-by-for-women-scotland-against-scottish-ministers-on-the-management-of-transgender-people-in-custody/…
I have been sent the EHRC submission, which I’ll post up on my website later if they don’t.
That sounds like a threat! I’m very grateful they sent it to me.
[lots of technical detailed stuff]
LI I hesitate to say all will become clear…
LR I’m looking forward to it
[LI is making what I think are two broad arguments – that whilst FWS has standing – its argument cannot be made and should be dismissed. Also LI seems to be arguing that SPS policy is not affected by the SC judgment]
[but I may have got that wrong]
LI the structure of the act tells against the implication of duties – that’s the long and short of it
LR ah okay
LI an issue of standing is not taken against the P – but we don’t accept their arguments nor their relevance. So we accept we are here. We requested, but…
… their arguments are irrelevant.
LI An individual can bring a case against a policy. See Coll: “Since then, of course, she has been released and required to live in an AP in Bedford. So if there is discrimination, she has been the victim of it. We are told by her counsel that she was required to live there for over nine months, was unable to get travel warrants to look for accommodation in London, and is now living in rented accommodation near Bedford. Thus the placement in the Bedford AP has had further consequences for her and perpetuated the separation from her family. She has now brought a discrimination claim in the county court, but this has been stayed until the outcome of these proceedings is known.”
LI so we’re not saying no JR – just we have arguments against P’s JR
LR where are limits of availability of delictual remedy? Take an ind f prisoner affected by a TW prisoner. Her oppo to bring this to court is what?
LI it would be an either option – if it’s a policy level challenge it might be by JR or if it’s discrim it would be a sheriff court action. Either way it’s an individualised nature of the claim.
LR that’s two fora and that’s not what the act conemplates is it?
LI perhaps Mr M can pick this up
LR okay I have a further concern, JR is meant to be if not a last resort then there should be an alternative fora
LI I think the policy might be the distinguishing feature. One would challenge the effect of a policy in sheriff’s court. In a JR it would be the policy.
LR i’m struggling with this.
LI in a JR it would be a challenge to the policy, not the discrim effect of the policy
… subject to anything my learned senior wishes to add.
LR but the gap is not in specifying what? Are you saying they could never argue anything
LI it does come close to that because P has not experience discrim
LR in prison
LI at all
LI this is not a representative claim. This is a claim by a corporate body against a policy and it is arguing the law converts the policy into a duty. we say it doesn’t. They have standing to make the argument, but we say it is wrong.
LI my final point – exceptions. It’s not a small section.
LI part 14 of the Act provides for general exceptions. The interpretation provision is in s16. The index of defined expressions is in schedule 28
LR hold on slow down
LI sorry. [explains again] Okay moving on I want to deal with schedule 22 first and then schedule 3. We think s22 provides the answer. Mrs Scott took my lady to this provision earlier.
[it’s all getting very technical again]
LI raises Amnesty International v Ahmed [“Claimant, of (northern) Sudanese ethnic origin, applied for promotion to role of “Sudan researcher” for Amnesty International – Not appointed because Amnesty believed that the appointment of a person of her ethnic origin would compromise its perceived impartiality (and thus its effectiveness) and would expose the Claimant (and those with her) to an increased safety risk when visiting Sudan or the camps in Eastern Chad – Claimant resigned and claimed for race discrimination and unfair (constructive) dismissal]
LI takes LR to par 44: “The starting-point must be the decision of the House of Lords in Hampson v Department of Education and Science [1991] 1 AC 171. In that case a teacher of Hong Kong national origin was refused qualified teacher status in this country because the Secretary of State had not exercised a power conferred on him by the relevant regulations to treat her Hong Kong qualifications as equivalent to the necessary UK qualifications. The refusal was alleged to constitute indirect racial discrimination. The Secretary of State argued, and the majority in the Court of Appeal had held, that the Secretary of State was entitled to rely on s. 41 (1) (b) because the decision complained of was taken under powers conferred by a statutory instrument. The House of Lords rejected this submission, upholding the dissenting view of Balcombe LJ that:
“… acts done ‘in pursuance of any instrument’ were to be restricted to acts done in the necessary performance of an express obligation in the instrument and did not extend to acts done in the exercise of a power or discretion conferred by the instrument.”
(see per Lord Lowry at p. 180 D-E). A similar narrow construction of the section had previously been adopted by this Tribunal in General Medical Council v Goba [1988] ICR 885: the House of Lords broadly approved the judgment of Wood J. in that case, while not fully endorsing his detailed reasoning (see per Lord Lowry at p. 186 A-B).
45. The approach prescribed in Hampson is easy enough to apply in the straightforward case where the statutory obligation relied on is clear-cut and more or less directly enjoins the doing of the very act complained of. An example of such a case is Olatokun v Ikon Office Solutions (UKEAT/0074/04, BAILII: [2004] UKEAT 0074_04_1005 ), in which the employer had required a potential employee to produce a passport. The requirement was held to have been imposed on racial grounds, but, the employer was held to have a defence under s. 41 because s. 8 of the Asylum and Immigration Act 1996 (as construed by this Tribunal) obliged him to require proof of immigration status from potential employees.
But there will also be cases where the act complained of is not, as such, required by the statute in question but is nevertheless done in the course of compliance with an obligation imposed by it. The logic of Hampson (and Goba) is that the defence will extend to any such act if, but only if, it was necessarily done in compliance with the obligation in question. In Goba Wood J said at p. 894 G-H: “The act complained of in its doing and in the way it was carried out must have been one which was reasonably necessary in order to comply with any conditional requirement of the statute or order.”
While Lord Lowry (loc. cit.) was cautious about the equiparation of “in order to comply with” and “in pursuance of”, that point does not affect the essence of Wood J’s formulation, which we respectfully endorse.”
LI says par 46 is relevant to the FWS case: “The peculiarity of the present case is that the statutory provision on which Amnesty wishes to rely, i.e. s. 2 (1) of HASWA, is in terms which are exceptionally general and whose application in any given case is rendered the more uncertain by the incorporation of a test of reasonable practicability. However, we cannot see that that makes any difference in principle. However wide its terms, s. 2 (1) creates an enforceable legal obligation. It would be intolerable if an employer were to be liable under the 1976 Act for the doing of an act in circumstances where, if he had not done it, he would have been in breach of duty under s. 2 (1) – and indeed be guilty of a criminal offence (see s. 33 (1) (a)). And it is not difficult to conceive of cases where persons of a particular nationality or ethnic origin may be subject to (or pose to others) particular health risks which require them to be treated differently from other persons.”
LI this is the point of principle on which we rely. Mr M will set out the other stat authority on which we rely, by ref to the prison rules and the HR act.
LR so you don’t want me to grapple with the application of rule 106
LI that is still to be grappled with my lady
[arcane legal discussion]
LI final part of my sub – is schedule 3
LR hang on i need to note a few things down from all of that. give me a moment
LI schedule 3 you were most recently taken there by JS. Schedule 3 is not exclusively a services schedule, but it does give you an idea what a core public function entails.
LI going back up to s27 you can see various conditions are set out after the “if” – which have to be satisfied for a person not to contravene s29. It provides a series of defences to a claimed contravention. By example in R Coll…
“Ms Rose now seeks a different declaration from that sought in the claim form, to the effect that the provision of approved premises discriminates unlawfully and has not been justified. That is a simple statement which reflects the findings I have made. I would be prepared to grant a declaration that:
“The provision of Approved Premises in England and Wales by the Secretary of State pursuant to section 2 of the Offender Management Act 2007 constitutes direct discrimination against women contrary to section 13(1) of the Equality Act 2010 which is unlawful unless justified under paragraph 26 of Schedule 3 to the 2010 Act. No such justification has yet been shown by the Secretary of State.”
This makes it clear that an individual woman who is less favourably treated as a result of the provision of APs may bring a sex discrimination claim in the county court, but that it will be open to the Secretary of State to resist the claim (assuming it to be made out on the facts) on the ground that the provision is justified under paragraph 26.”
LI it’s obvious from the order granted in Coll and Baroness Hale’s comments under the order – if you take away schedule three you don’t have a defence to established claim – you need to establish it or it must be able to be established
LI final point – just to flag a provision we’ve already looked at in par28 of schedule three – I flag it because it will be seen from the terms of subsection 2 the matters listed – shows that those are the matters governed by s26 and 27 – so s28 is subordinate to s26 and 27…
… or potentially governed by s26. If there is an issue for the ministers in this case on the basis of Schedule 3 – ie if the P is correct re 26 or 27 if those provisions require
absolute segregation – then this provision creates a difficult for the ministers in their competing competency constraints. It’s only if we get to that stage. But we say that this is a hypothesy which is not arrived at.
LI that’s it
LR thank you
LI – Mr M your appearance has been trailed
GM I’m not known for taking four minutes
LR how do you want to play this
GM I must finish at 3pm tomorrow to allow AO the hour.
LR grateful to the parties for agreeing to their own internal structure
… but if you’d like more time tomorrow.
GM I must finish by 3pm
AO I’m happy to take more than an hour
{laughter}
LR that was not the offer Mr O’Neill
GM I accept that this is a challenge to the SM policy which is that they may hold a TG prisoner in a prison of the opposite biological sex.
LR yes
GM what is helpful from TC’s par 31 we must compare the policy with what the law is
now one of the reasons for LI taking such time over the detail is to ask with which legal proposition is the policy being compared. AO’s prop is that a man cannot be held in a woman’s prison. We say where is that proposition as a statement of law.
That’s why we say we apprehent that schedule 3 is being used to convert a shield to a sword and even that is incomplete because it would mean a woman cannot be held in a man’s prison and AO says he doesn’t care about that – so this is about a man in a woman’s prison and where…
… is the law about that. If we are dealing with direct discrimination it would be required to show less favourable treatment of an individual. YOu can’t say a man and a woman are being treated differntly. YOu have to say it entails less favourable treatment. Equally if it’s
looked as a case of harassment – then what one would be required to show was the misconduct from the perception of an individual is unacceptable. and that that is reasonably based. So there are layers of sophistication if the measure of lawfulness if sex discrimination is missing
It’s clear from Coll we only get to schedule 3 if we would be for example with direct discrimination if there were a case of less favourable treatment of a man to a woman. You would not need a schedule 3 defence if a P were able to argue less favourable treatment.
It’s only if less favourable treatment is demo’d that schedule 3 would apply. There is for rational reason a diff between s29.1-5 and s29.6 – the distinction is practical. s29.1-5 comes from the goods and services directive
it applied to private and public sector services. The directive did not apply to public function. If it’s a public sector service or a public function employing a service. What parliament did in enacting s29 made the exercise of public function even if it did not involve a service
[i am not sure what the end of that point was]
GM if you have a duty of care under the Health and Safety at work act which means you must treat a woman differently from a man [goes into s29.6, schedule 22 and schedule 3 defences]
GM I will carry on tomorrow – what I will do is look at
… the nature of the human right that’ sinvolved here and we will look at s57.2 of the Scotland Act, including the case of Somerville pars 32 and 38 – where Hope explains in Somerville that SM are unique, they don’t have a get out of jail free card in s6.2 – they have to comply
directly with HR
LR okay
[AO speaks off mic]
AO predicating this case on 29.6 but his pleadings refer to s29.1-5 – so on their own case they’re accepting s29.1-5 may apply. It is in fact expressly referred to in our pleadings.
Par 31 of our pleadings we reference s26 of the anti-harrassment provisions…
AO on their pleadings and our pleadings there is not a complete and utter dividing line between core provisions and public services
LR GM?
GM I stand duly instructed on what my pleadings say. There are two routes. We start on 29.6 and if we can’t rely on it we take the second route.
LR thanks. we resume at 10 o’clock tomorrow. [court rises]
[That was hard going. Thanks for sticking with it. I’ll try and make sense of it in a blog post later. Thanks for reading. Have a good evening.]