Thread by @tribunaltweets

We will be returning to the second morning session of the JR of FWS v Scottish Ministers on Prison Guidance at 12.10pm.
The earlier session and abbreviations are here:

We anticipate Janys Scott KC (JS) counsel for the EHRC next.

J Just a moment. Good pm JS
JS I appear on behalf of EHRC. Much like KB am not on behalf of either party
J I'm v greatful to your response to the invitation
JS I am appearing instead of Dean of Faculty and have set out my args on a piece of paper. I am using terminilogy of FWS SC

JS So will describe a bio M and has PC of GR as TW and opposite for a TM. I'm also going to refer to the PC of GR in Sec 7 of EA [lists] We msut have that in mind. The EHRC has general duties. Drawing attention to Sec 3 - respect HR , dignity of worth of each indiv and a shared respect for eqaul and HR

JS So looks at everyone, and must include TM as well as TW. There's a temp hiatus in the guidance and the codes come under material aspects of the commissions functions. This code prev said to treat as per GI on a case by case basis and the PG is consistent w the 2011 code, but not w SC

JS We welcomed the clarity brought by the SC and now need to work w this clarity
J You say the 2011 code is gone but technically still in place
JS The UK Minister has not repalced the code. J Swift helpfully adds info that's factual background in supplementary bundle. He makes usefull note that Code isnt law

J But doesnt explain why not released yet
JS the current policy - guidance - where a TW in F prsion makes it difficult to justify different sex segregation but makes it difficult to avoid mixed sex provision
J So erodes the justification
JS It undermines the exception in 3
J Plse carry on
JS TW are biologically men and PG has provision for a M to be put in F after careful assessment

JS But PYOIR says they must be in sepaerate estates but have to be kept as sep as possible. There's justification for seperate provision as deals w privacy, dignity and safety and W who have no choice re leaving who are v vulnerable. we accept FWS on these facts

J What do u mean by no choice for F prisoners? U dont have a choice in employment but have opt in or other provision in other circs, but a prison is absolute
JS It is unique as you cant walk away. You have to be there and enhances the justifaction for SS provision.

JS Looking at the EA, p335, going thru stat exercise [reads fast re not discriminating in service provision] Part 6 more of a problem [reads fast] which will become relevant. This takes us to whether exceptions to 29. Go to new bundle

JS [reads para ?26 fast re proportionality of achieving a legitimate aim] So separate but different is applied in Cole case and segregation in sch (case 360). Sch provision - remain single sex if small nos. But in Sch 3 we're absolute. The legislation cld have been diff framed

JS It wld be a joint service if TW in F as is mixed sex. Makes it hard to say joint service wld be less effective. Get into diff of DD and Indirect discrim if try to exclude certain men. [reads re GR discrim]

JS We're concerned w A and B here. If provide sep services for each sex u aren't discriminating if is a proportionate response to a legit aim. The whole problem was recog by Lord Hodge in SC, laid out in section 18. It's worth looking at this in some detail
J It's a p2?8

JS Part 3 regulates services [reads fast] Sec3 contains exemptions that might otherwise bring GR discrimination. We're dealing with those with and w/out a GRC. It's arbiter but he's set it out in detail [reads re carve out exemptions]

JS [reads re provisions to allow SSS for changing rooms for safety, dignity, sep health services etc] Para 26 allows provision of SSS that doesnt bring direct sex discrim. In para 213 [reads re sex having bio meaning it allows separation etc]

JS [reads re problems of allowing TW into F services/spaces - v v fast incl whether have GRC or not and appearances]
JS [Although GR does apply it wld be challenging...reads v fast] Para 27 had similar problems.
JS p216, re application of gateways. P220 re only making sense re biological sex

JS [reads re provisions to allow SSS for changing rooms for safety, dignity, sep health services etc] Para 26 allows provision of SSS that doesnt bring direct sex discrim. In para 213 [reads re sex having bio meaning it allows separation etc]

JS [reading v fast re coherency of EA] Lord Hodge says if sex means bio sex then para 27 excludes all males even if have a GRC. This might be considered appropriate re TM in Ws spaces. This is the TM issue being dealt w by L Hodge.
J Well. Um. Does it completely address the SM TM issue?

J It it help deal wi the Rs TM issues
JS It deals w the lawfulness that u can take TM out of F estate via Para 28. U can apply para 28 to take them out. It has to be solved on the ground and isnt solved by the guidance. A mixed estate - gets to sitn where for example a man cld say I want to be in that closer prison

JS and he cldnt be kept out if a TW was in there already. The SPS gets itself in a mess if it continues to use this guidance
J Isnt it primary legislation that they shld use? There is a strong/ wide level of discretion for Ministers to use. But we cant move you to X cos yr a man

J is no longer available
JS We have to have a seperate F estate
J What about practicality
JS How far does reasonably practicable go? It doesnt allow u to mix up M & F accommodation. They must be in sep parts and doesnt derogate it has to be sep accommodation. It's not a free for all.

JS The position for us is the SPS have got themselves into diff related to the EA legislation. Is this a function or a service [missed]
JS You cant discrim in provision of a public function but sch 22. [reads re person's PC in columns of a document]

JS If a public service and req by an enactment to do something other than 26...??
JS It's defined in terms of the HRA which isnt contentious
JS So must contend w ? Our possition is they arent mutually exclusive and consistent w FJD - which predates FWS. But there's a presumption FJD still applies

JS It's common sense that this is a service and not a public function (food, warmth etc) so u have to meet the legisaltion. U cant say y're required to do something different. L Hodge describes hospital wards and Sch 3. Our position is y're still providing services and subject to EA,

even if also providing a function.
JS The HRA itself doesnt make requirements and has no +ve obligation. A bright line rule: are the SM contravening the HRA. Rule 126 is the bright line rule re sep accomm in prsions. The P case you were involved with is encapsulated well (case 46)

JS We've already covered reliance on Animal Protectors in this case. This para deals w bright line provisions - I wont read it out
J What pages are these?
JS [details for J] It recalls that the state can apply hard rules even if specific cases might be impacted [reading v v fast]

JS [reads re case law and proportionality] So do the proportionality assessment in advance
J That's wherr u do the assessment
JS Yes
J I've been invited to consider Rt 8 v Art 2/3 by SM
JS RP v RRR case 47 re housing benefit where the law was disapplied in extreme case.

JS A rapist father wanted to participate in childrens hearing. So there is scope in extreme case, one might look at scope and in this case cld apply
J that was extreme Art 8
JS Yes. So our position is what has happened thus far are in the margin of apprec and cant say Strasbourg wld rule us out.

J Help me out w an extreme case
JS Cld be a risk of life. Art 3 isnt minor though. If get to level of Art 2 or 3 is potential for relief - sec 6 of HRA. Is about ? authority
J Do u accept the SM case
JS No. Keep the policy but
J I accept that. there can be no nright line in policy but there may be an extreme case. What does it do to the policy?

JS It allows flexibility
J Does the guidance have to say no TW unless extreme circs
JS You cant have s'one at risk to life or extreme harm. It's for SM to think carefully about their practical provision on the ground to work out what to do, including in extreme circumstances

J I don't want to eat into your time GM but let's break for lunch and return at 10 mins to.

COURT ADJOURNS

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