Thread by @tribunaltweets

Welcome to part 2 of the morning session in the final day of For Women Scotland vs Scottish Ministers challenging the Scottish Prisons policies. Part 1 is here, with a full list of abbreviations and background to the case

The Court is at present taking a short break. When we resume, Gerry Moynihan KC will continue his arguments for the Scottish Ministers' case.

[We resume]

GM: I'm optimistic about finished for 3pm but we will discuss if necessary at 1pm
GM: My prop 3 - SM must act in accordance with convention rights - see Somerville, a case re segregation.

GM: Point here - Scotland Act - provision that Lord Advocate cd prosecute even so, not subject to full force of 57.2. [complex legal narrative here with many paragraph refs]

GM: Discussing 57.3 ScotAct - structure of Act. Whether time bar provision necessary. Found that independent of HRA. There was no time limit then though there is now. J says, intention of Parliament - re Lord Adv prosecuting *any* offence, has same protection as any other in UK

GM: Goes on, does not apply to any other Scottish official other than Lord Adv. Others must go via HRA. Quite long passage - basically House of Lords had been asked to rule on a rag-bag of bits of law, this was one of them.

GM: A person claiming re human rights, can choose to go via HRA or ScotAct. Individual could sue under ScotAct, and if so 6.2 defence not available. I am not aware that this issue has arisen subsequently.

GM: Was anticipated to be rare. AFAICS there is no case law beyond the statute here.

GM: [very technical - I suggest looking at ScotMinisters' submitted written arguments, see our substack page]

GM: Result is clear that SM do not possess the ability to defend themselves by citing duties re EA2010 against any HR challenge - it's not available to them.

GM: See "Reserved matters" - international relations etc are reserved matters. The exception made is, implementing international obligations, Convention, European law.

GM: So there is devolved competence re implementing Convention obligations. Am not sure if that is common ground.
[I think AO has said yes it is]

GM: SM cannot avoid convention rights, and it's devolved about the implementation of convention rights. SM can give precedence to convention rights over EA.

GM: Also on reserved matters [page ref] - in our note of argument. This is re HR so 1998, before the 2010 EA.

GM: Lists the discrimination statutes of the time, as included as not devolved. Defines "equal opportunities" both positive and negative. And not co-extensive with the EA. This is partly a historical feature - 1998 - 'gender reassignment' not included explicitly.

GM: But say "or other personal attributes" including beliefs / religion. At this time some cases in Euro court, which brought 'gender reassignment' into definition of 'sex' for discrim purposes. So, Act is quite loose here, anticipating Euro HR cases to come.

GM: So - it's not the same as the EA, the EA not the sole measure of 'equal opportunities. Partly historical and allowing Scottish community law, but, even today - we have Art14 "personal attribtutes" sort of language.

GM: The 'equal opportunities' are reserved, the exceptions include here, in relation to the Scottish functions of a Scottish public authority - not reserved. Does not include Equality Act (only mention of it); but the other exceptions are more generally drawn.

GM: Not confined to the EA.

GM: So could include Convention rights. I am not going to go through all the exceptions, but the point is the Act puts a legal duty on SM to act compatibly with Convention rights. Universal prohibition.

GM: So is there a conflict for SM in this part of the Scotland Act and the EA. My primary position is that to construe and apply the EA consistently with Convention rights, having a case by case approach to putting TGppl in opposite sex prison - [gives page ref]

GM: [reading from case] When Section 3 is considered by a court whether compatible with convention rights - it's in passive voice so as not to limit who can make use. Applies to courts of course, but also to everyone else who may have to give effect to legislation.

GM: Not limited to national or local government. Section 3.1 required all types of public authorities to read their legislation in a way to make compatible with convention rights.

GM: Public authorities - in this instance SM - they must give effect to convention rights. There is no suggestion of latitude. Must give effect as far as possible.

GM: My prop 6 - whether EA2010 can be read in a convention-compatible way. First Q is whether it is possible to construe us as within 21.6 - whether treatment of TG prisoners is exercise of a public function.

GM: As opposed to provision of a service. I obviously accept that downstream there will be services - provision of food, clothing, education etc.

GM: But this particular function - is that within 29.6? I think petitioners and SM and EHRC all agree I think that the policy attracts 29.6. It is possible to construe "a public function" as not involving a service as applicable.

GM: 29.6 exists for a purpose, and I say it's there bcs UK parliament was expanding goods and services legislation to public functions, but knew that if required in law elsewhere that would be enough to bypass.

GM: A public function for these purposes is the same as one for the convention rights.
J: Is it?
GM: See p3337, 31.4
J: I have it.

GM: 29.6 is because Parliament knew public bodies already bound under HRA not to discriminate.

GM: If a statute gives a discretion, that does not necessarily engage 22. If you have latitude, you can't use it. See Amnesty case.

GM If circs of a particular case leave no discretion - if treating a woman differently from man for health & safety reasons, that's not sex discrimination.

GM: Q is whether a statue imposes a limitation, we say HRA does.

GM: Coming to Rule 126 allows M and F prisons, we are asked why separate M and F prisons. Answer is to ensure sex discrimination can't be claimed.

GM: Sch 22 applies only to 29.6.
GM: Sch 3 is not necessary if we are in realm of 29.6.
GM: Other point re 29.6; 29 1-5 are about different aspects, 29.6 is about something else.

J: You are saying, these are not sequential?
GM: Yes they are not cumulative, they are mutually exclusive.
J: And you say that if I disagree with you on that, then you adduce 29 1-5 + Sch3.
GM: Yes

GM: I say that 29 1-5 and 29.6 are mutually exclusive, because you either are or are not providing a service. EHRC disagreed with me I know. But I argue that SM are applying this policy under 29.6

GM: Later on, eg food in prison, yes that's under 29 1-5
J: But you wdn't get to providing the food until after the policy implemented.
GM: Yes I am mentioning 1-5 as an alternative - my primary argument is 29.6

GM: Q is whether the exercise is capable of falling in 29.6? I say yes bcs HRA. Direct route to giving effect to powers and duties compatible with convention rights.
J: Sch 22 bring both together.

J: You are saying there is a smooth way and a blunt way to bring it all together?
GM: Yes

J: Sch3 p26.3 - bringing together re a public function in relation to the provision of a service - you say, only applies downstream?

GM: We say, 26.3 applies to situation where the public body *commissions* a service but does not itself do it.
J: EG a private prison?
GM: Yes. The section is making sure that same obligations apply even when not providing itself.

GM: None of this is easy, it's very complex, but as Lord Rodgers said if we can make it work, let's do.
GM: So if that requires a case by case analysis, then so be it.

GM: So looking at Z v Hackney. Lord Sayles -
[J is looking up and reading the passage]
GM: Point is that the conjuring act can result in what would be an unusual outcome to some eyes. Same provision can have different meanings.

GM: Lord Sayles say, legislation should be given effect per its ordinary meaning unless someone can show that to do so would be incompatible with convention rights or European law.

GM: If they can, then court has to look for an interpretation that works for them. So can be different outcomes, depending on whether the convention obligation is in play or not.

GM: Lord Sayles says, otherwise convention rights / European law would be given too much weight.
GM: Basically is saying, don't get into hypotheticals; deal with each case on its facts.

J: Yes I understand that, but am trying to link to what was argued yesterday, about how we should not permit this petition in the absence of an individual case. I'm a bit confused.

GM: I understand. I will come back via Lord Rodgers. Ministers must give effect to legislation in a way compatible with Convention. Are aware of a range of different cases. Hence case by case approach.

GM: Q is whether it's OK to have a case by case approach, if there are cases where Convention rights apply.
GM: The petition is to remove that choice.

J: You are saying, there may be a person with Convention rights engaged, so ministers are obliged to construe in a way that allows consideration of Convention rights.
GM: Yes

J: So default position is, M in M prison, F in F prison, unless a TW says "my Convention rights are engaged". You are saying just by virtue of GR characteristic, a TP has the Convention rights, so all must be dealt under case by case basis?

GM: Yes every TG person has 8.1 bcs GR, but 8.2 then necessitates case by case approach.
J: Does that not presume TG person has a right to be in opposite sex prison, unless dangerous? Presupposes there is a right to opposite sex prison?
GM: Yes

J: But isn't that the problem? where does the right come from?
GM: Best put by Lady Hale in RC - para 29 - p1487 - "serious impact on [] right" to live not as 3rd sex but fully the person they have become M or W. Have the *right* to be person of the acquired gender.

GM: Annexe 6 of the PG lists all the factors that need to come into the decision re which prison.
GM: There may be a point that the policy does not cover all the 8.2 analysis required - but that's issue for another day.

GM: Q here is *whether* SM can operate a case by case policy.
J: Concession that current policy defective?
GM: No - only that more consideration might be required.

GM: Q here is whether case by case is allowed at all. Whether a further EIA should be done is a secondary and different question.

GM: The points on which AO and I disagree are not about EIA, are more fundamental.

J: Q of Convention requirements on SM, OK, but not clear whether you are asking me to dismiss the petition because these are secondary issues, but I think petitioners don't agree they are secondary?

GM: Am arguing whether *in principle* a case by case approach is allowed. If we go to Sch3 by "the other route", it's too hard and fast. We say, no prima facie sex discrimination or harassment and therefore, there is no basis to elevate Sch3 to a positive obligation.

J: You are saying, only hypothetical
GM: Yes, we say Sch3 is only a defence.
J: Not sure about that.
GM: It's for your lady to decide of course, but that is our argument.

GM: The Scottish Ministers are here because this is a practical issue for actual people - TG prisoners, women prisoners, obligations to all prisoners.

J: So asking for petition to be dismissed unless an individual wants to bring a case [I think]

GM: So going back to 29.6 route - prison rules, ministers must not just construe but must give effect to Convention rights. If there is discretion for Convention Rights, SM must effect that.

GM: We could discuss meanings of M or F, of accommodation, etc etc - I am not going to argue for definitions of M and F other than biological, just to be clear.

GM: Rule 126. [gives ref 4097]. Says F prisoners must not share the same accomm as M prisoners. 126.2 says M and F accomm must as far as poss be in separate parts of the prison.

GM: 'Accommodation' means, it says, the cell and other areas for living and sleeping. Sleeping is obvious. I am going to argue that "accommodation" means just a cell. It's said, what about "living"?

GM: See 27 p4004. - excuse me, I must check my notes -
J: This says "cell or room", you said "room" *means* "cell"? Surely suggests, not the same?
GM: I understand that terminology is, 'cell' in M prison, 'room' in F prison.

GM: See 28.1 - says governor says whether shared or single accommodation - must mean a cell. 29 follows on, about the standards, clear means cells. 'Accommodation' is the cell - not the landing, not the communal areas.

GM: So rule 126 only says, M and F should not share cells.
J: That's pretty minimal!
GM: Before 2010 these rules, TG ppl could be in prison of opposite sex.

GM: Doing the magic trick - 'accommodation' can be a separate cell. The only instance in which there would be two ppl of opposite sex in adjacent cells would be if TG person. Other prisoners wd never be on same landing as opposite sex.

J: Is a simpler reading not, it's possible to have prisons which have an overall shared establishment eg Polmont, where there are separate parts? That a prison can have M and F, provided you keep them separate?

J: This rule surely can't just be saying, don't put a M and a W in the same cell???
GM: This is why I say, look at it with Lord Rodgers eyes; you might allow a TG person in adjacent cell but wd not allow a NTG person.

GM: 'Accommodation' is defined as it is - am not asking for extreme reading - but for TG people.
J: You are saying *could* be interpreted that way?
GM: Yes

J: Um. SC - FWS on principles of interpretation?
GM: Have gone to Lords Rodgers and Sayles and not the SC in FWS on statutory interpretation.

J: A kind of meta-statutory-interpretation, because convention rights?
GM: Yes basically. This is good point for lunch but if we could have slightly shorter lunch, say to 1.50?
J: Yes we will do that.

[LUNCH BREAK]

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