Thread by @tribunaltweets

From 10am we will be live tweeting the Scottish Govt's petition for Judicial Review of the UK Govt's order under section 35 of the Scotland Act 1998 to prohibit the royal assent of the GRR (Scotland) Bill 2023. The petitioner (Scot Govt) will be speaking today.

PC Protected characteristic
EA Equality Act 2010
GR Gender Reassignment

Apologies, I couldn't get in immed
DB: discussing the papers she's submitted
J Application to submit new documents/ list of authorites
These are accepted. Discussion re speakers email that arrived last night that could be added
DB Agrees this can be added
J Allows this. Concludes

DB For the 1st time since devolution the Sos used s35 for the 1st time. The title of the bill is... We submit the order is unlawful and seek its reduction. This s not about legislative competance, as s33 allows this

The SG was entitled to pass the bill as the UKG gave it allowance. It passed its final stage [gives nos] There are those that disagree w the bill, the SoS is in this no. This isnt about the bill being different or better but shoudl be on merits of the bill

Devolved legislation will have an impact...allows Sos to veto any act he disagrees with. This wld allow any bill to be stopped it disagreed with, which is counter to the SA intention which was to devolve power.
This is about proper constructio of s35, within competance of SG

It s the SG contention that s35 are not satisfied so this is unlaeful. The structure I present and accept will sat why. Looking at the various docs I will take these as read. The SoS said he had the policy statement of reasons b4 making his decision

DB It's unclear when various decisions were made and I will return t this
Looking at NOA, context is everything which is constitution and devolution. 1st feature is status of SG and fundamental constitution and separation of powers.

SG has powers of democratic mandate within the competance its given and have the highest authority. In para46, SP takes its place as self standing democraticaly elected mandate. So enjoy the highest legal authority

Limits of SG competance were set by UKG. So democratic decision of SG is allowed and the UKG goes against its own want for devolution.
Re separation of powers, the prorogation case, in para 40, the legal principles incl constit principles from common law, include the conduct of

public bodies and the rships between them. Looking at prorogation powers the separation as a constit principles, the rship betwn the SP and UKG (an executive) the court has a role in giving effect to constit principles. Re the Fire Brigade union on p416

interpret the laws and step onto the executive and the manner they're exercised is fair. Also parliament can ensure the exec performs in a way parliament find appropriate. is the task of parliament to govern the country. Sometimes the exec needs to be pulled up to avoid a vacuum

The courts are involved in a way they never have been before, a resolution was tabled but time wasnt allowed for this - the early day motion - re SoS veto of SoS. No time was given for a debate or vote. we;re in the dead ground and stepping into the vacuum to avoid misuse of exec

powers.
I dont agree with the advocate and submit you shld not refuse to go against the Sos but have a duty to do so. Looking at Hansard re s35, re historical facts...the relevant is para 158 which aren't disputed facts

DB The SA allows veto that goes against the separation of powers. Parliamentary accountability is a constit principle that recently made clear in para 46. Having largely transferred powers to the SG and constit means parl responsibility [missed] UK govt veto shouldnt be allowed

on policy disagreement. Its inconsistant w parl principle. The decision to make s35 calls for a polit settlement, and against this I ask you to look at para39 my Lady. [reads re principles of law and giving them effect of upholding the constit and making them effective

DB Courts cannot shirk if differences in tone, context. It's a polit decision that shldnt be in court.
Now moving to s35 - the correct interpretation has never been ?
s35 says if a bill modifies the law which the SoS has reasonable grounds to affect law...continues reading

Order has to identify the bill and the problems. 4 weeks timescale. The suppl bundle contains more info. I understand there'll be exceptions to this. 3 parts set out by Lord Wilkinson - disagreement over the test. Ambiguous meaning [missed]

I understand that 1st test re ambiguity is to be tested. I'm surprised about this so include 2 cases
J It may be we'll find out how controverisal this is and is about their interpretation rather than their use
DB The SoS at the time, Mr Dewer, responds re JR and a different

scheme of devol, discusses distinction of separation of powers in 1978 legislation and cld have been stopped if he didnt like the policy. It must have an impact on powers and not be disliked. In the SA, which wld be amenable to JR. This is how s35 shld be approached

Lord Sewell took SA thru the Lords, [reads para 2] the SP legislation needs to be able to have ancill effects on parlia matters..needs safeguards re reserved matters and cld have impacts on for eg social services payments. These powers of interventions are meant to be footstops

interventions [missed] there shld be no doubt that these may be necess as a safeguard and a longstop. Para 40 in NOA, the exercise needs import safeguards and a reasonable test was added, the adverse effects .... and where S0S cld have intervened. But only reserved matters could

It is repeatedly mentioned that he only had 4 weeks to make the order but he wasnt working from a standing start. A consultation could have been anticipated. If the SoS he didnt say anything during the consultations befor ethe bill was introduced

Longstanding methods of consultation before the bill is introduced etc and s35 was never raised or explored in details
J Not clear of the signif of this point and can see it cld be argued that it cld be raised. The lang of s35 doesnt say consultation is required

Or notice being required, altho this hasnt been looked at before. How does this assist with deciding on lawfullness here?
DB The MOU was a signif doc but not binding so s35 order but context is to ensure the devol settlement is workable, 4 weeks decision to veto is signif and

SoS relies on this and it's an important context.
Your ladyship shld note this is seen as a matter of last resort, para 27, incl s35 the MOU says that these powers are only to be used as last resort after discussions. The UKG will inform of intentions to allow remedial action

which didnt happen here. No disput about being legally binding, but its approp to notice the terms of the MOU, which are clear w parliam statement as a longstop. Normally, consulatations and SoS cannot cherry pick and ignore the MOU. The expected conduct of inter gove relations

The MOU isnt legally binding but was a failure to enage w terms and spirit of the MOU, which is important. More than a little suprising that so late a raise of s35. At no point did the UKG raise concerns it might raise s35. The AG hasn't [missed re advocate general]

DB: Tp pass test of lawfullness. Conditional and cumulative to make a valid order. Condition 1 - modification isnt defined in the SA but modify includes appeal, alterations or omit. Modif simply means a change of law re devolved issues. So change must have an impact on the law.

The bill doesnt change the law, so s35 shouldnt be engaged. Consider condition 2 - adverse effect on law re reserved matters - is all a matter of the SoS judgement which O dispute. The AG approach is inconsistent and the veto runs against constit principles.

At a general level the effects must be suffic cogent. I submit within the overall constit scheme and allowance of diversion, section 134 of the SA re subordinant legislation. This provision has been used over 100 times already

DB: Going to unpick...the UKG has allowed divergence on this issue so a legislative cjoice has been made. It cld have been reserved in Sch 4 or ? The UKG was content for the SP to go its own way re GR and this shld not be thwarted by the exec. Some is about divergence per se

which shld not be allowed
J Asking about objections to divergence
DB I will come to this soon. 2ndly re power of veto, in para ?? and s104 order. This cld have been considered in the 4 wks. wld not be uncommon to prepare for a section 104 in advance

DB Condition 2 cld be satisfied so need to look at c3, which has 2 requirements. Identify the bill and conditions, and the reasons for the provisions. Common law requires these are of sufficient quality to proceed and make a lawful order. Sch2 of the order is that insuffic in law

to justify making the order. So dealing w the bill, p5 of my outline, I have addresssed the constit context within s35, the validity of challenge, and looking at GRA 2004. This provides for when a person can get a GRC which applies for the whole UK

For someone over 18, and leaving aside the rules for those with a certif from abroad, [lists the requirements for a GRC and its effects]. Effects are in sections 9 and 15 of statement - the persons gender becomes for all purposes the acquired gender, and acquired sex becomes...

DB In the FWS case against the SG you ruled that the sex was that on a persons certificate and not tethered by birth or bio sex. But SW say there's an error in the SoS when saying sex shld be bio sex. So the GRA is a gender law and not an equality law, and this is how the law

stood at the time of the bill, and how it remains now. I now you'll look carefully at the docs.
The Fairer Scotland Action Plan led to looking at this bill with principle of reforming the 2004 act. A draft bill and consultations are in the bundle. The UKG didnt engage on these

There was no suggestion there wld be issues, but the UKG launched its own separate consultation. The UKG's is lengthy and in the bundle. The UKG only looked at law of E&W clearly indication that SG cld make its own legisaltion. Didnt suggest it wld have serious effects - what has

changed is UKG policy only. Their consultation did initialy suggest moving away from medical requirements and no concerns were stated re fraudulant applications at this time. The SG looked at international evid and doesnt consider such a risk.

Poling changed in the UK and the UKG decided not to proceed.
The bill had a high level of scrutiny in the SP. It was made available to the UKG before MSPs, and the equal and impact assessment. Looking at impact by sex and sexual orientation. Bill was assessed as having no

negative impact on these. The UKG has never called up issues in the EIA. The EHR and civil justice committee called for evidence and held sessions and in Oct 22 produced its evidence statement. It considered evid from abroad and wide gp of people. SG responded to this report

Bill went to stage 2 in Nov 2022 and plenary session in SP - amandments were discussued and voted upon. Stage 3 votes listed. What does bill do?

DB: It amends the process and circumastances that a person can get a GRC that affects those in Scot only but not the rest of the UK. I will refer to it as a SGRC - Scottish GRC. The availability doesnt preclude applic under 2004 act so a person cld apply for GRC too

It lowers the minimal age to 16, reduces period of living in gender from 2 yrs to 3 months and removes need for GD diagnosis. It treats a person from another country to have a valid GRC unless isn't...
Its effect re SGRC is the same as if is a GRC, but a SGRC isnt the same as a

SGRC would not be the same as a GRC in the rest of the country.
J This is a major issue with the AG as it changes the cohort and numbers who cld benefit from s9. But you argue it doesn't impact s9. How do you argue against this and the cohort is much larger

DB Its important to register what the bill does not do.
The acts interact as s9 is affected, but s9 is the interface betwn the 2 acts but isnt in the bill. its the interaction and effect and meaning is the same as given for a GRC
J which is to change a persons sex for all purpose

DB Yes there wld be an increase in nos but it doesnt change the bill and wld have the same consequences
J I understand the consequences are identical for both certificates, I'm just testing the argument. The conseq viewed objectively are different altho subjectively they're same

DB Condition 1 isn't changed - re an adverse effect on reserved matters. I'll come onto the AGs position re more ppl wanting a certif but its not approp for the SoS to approach this matter from an incr in numbers. There's no amend to s9 and the consequences are identical of both

certificates. So its not making a modification of the law.

DB Looking at 4 categories. Error of law - condition 1 - requires that a bill changes the law that impacts it re reserved matters. I submit the SoS made an error in law [discusses case laws] the decision maker must

understand the law [missed]
DB This shldnt be referred to the court and I dont agree with this, as condition 1 is a matter for you to make a decision on. You must resolve if a material error in law in making the decision by the SoS that affects the decision of the law.

DB I dont think we need to go thru these cases [listed]. Applying these principles I say SoS has made 2 material errors in law. Nothing in bill makes nothing about modifying the law. The operation of the law looks at the mechanics of the law - this is echoed by Stonewall

s9 of 2004 act and its is unammended by the Bill, and doesn't see a difference between GRC and SGRC. So SoS hasnt understood the law. He's just wrong as the same conseq come from both certifs and this is a material error in the law. The R does accept that s9 isn't changed

DB He relies on ?? [para 51] His NOA quotes individual phrases from this passage but it shld be looked at as a whole to see the whole context. [discussion on modifications and obscuring of schedules ??]

DB: Parliament has the power to enact bills provided it doesnt modify it [missed re protected enactments]. A modif arrises if it affects a rule, so place in context the AG has been very selective and it cannot be said the bill alters s9. it leaves it untouched

Its applied in its existing form, and cannot be said to be modified as described in the Supreme court in para 51.
J The word conflict is difficult or use another descriptor. S9 isnt going to be unqualified as b4 but the process to get a grc is changed. So isnt it fair to say

J that it fundamentally and deliberately makes it different ie easier?
DB The provision hasnt been changed
J Yes, the language hasnt been changed but u think its no more than looking at the language? Looking at the context of the case, do u say the proposition only

applies to enacted modifications?
DB [missed] It explains the effect of a certif which is the same, whichever certif u get. AG says S90 amends s9 insubstance as changes the meaning of GRC. s9 applies to SGRC but not in the UK [?]

DB Looking at 2nd area of the bill =s2. Provis of bill makes modifs re social security schemes. Managed by integrated systems across the UK. I'll return to the creation of a dual system - this is a divergence and not ? The SoS has relied upon the creation of a dual system

DB I understand there are no tax codes on a UK business regarding GRCs and the law recognises different juristictions for tax within the UK. It's hard to see a situation where y'd be a different sex in diff parts of the UK wrt to tax.

My complaint is not understanding the substance of the SoS reasonings. To understand what he was on about, and we're not the wiser. Does my Lady have para 20?

DB Looking at SoS schedule, in para 20 of SOR. Existing IT system only allows one sex marker and cannot change for 16 y olds. I dont understand the proposition as the tax systems allow differences already. Serious adverse and practical outcomes isnt explained anywhere or at any

point. And u can see they looked at this themselves when they looked at changing the 2004 law. So why is there suddenly such a massive problem? That describes as so serious too. Also no explanation given re the operation of the law regarding operation of tax systems.

DB [discussing Hinchey from H of Lords and entitlement to benefits]. These narratives dont contain anything the AG proposes in his case. An IT system isnt an effect of the operation of the law. The AG is simply an assertion and isnt supported. It shld be rejected

DB Only a cogent argument can be used to veto a bill that has competence. It isnt an insurmountable challenge to IT systems. These are speculative concerns by unidentified experts and these are insufficint arguments that dont satisfy condition 1. Under error of law, I advance

The SoS is underpinned by meaning of S9 and relates to yr FWS.. It hold s that the SoS hasnt understood the law and whether this is material, it is an error of law
Interface of s9 [very difficult to follow]

DB Wld not be an error of the law, and it's whether a decision maker made a reasonable mistake or not. If the law is changed, and an error is made in s9, and I say yr Ladyship was correct in s9...it's not clear whether this argument will still be advanced

DB The practical considerations are compelling and the issues in the 2 cases are closely linked. Only a hypotheitical issue re the law changing, anf this case might need to be re argued if the law changes again w the FWS case.
J this troubles me as there's a no grounds of appeal

J And we dont know if any of these 5 grounds are successful, it may be even a peripheral argument it succeeds on. So it' s not inevitable that success will have an impact. So hesitate to adopt yr contention here

DB Re irrationality of case, this is directed to condition 2 - a rational view that an adverse effects to reserved matters. I say it isnt reasonable or rational, and hence legal, and shld be removed. In para 4.2, re so outrageous in its logic that no reasonable person cld arrive

at it. This famous quote references recent cases re irrationality. The intensity is variable and theis is context dependant, so rather than looking at cases, we shld look at the NOA - notice of argument. The court must be intitled to ensure theres no flaw regarding the severity

of the decision. Common law hasnt stood still recently to ensure constitutional law proceeds, and will look at how logic has been inferred from the facts. Kennedy v Charity Commision: common law no longer insists on rationality as it used to.

DB A variable requirement of the intensity has therefore been accepted. Axa v Lord Adecote - the courts have the responsibility to ensure it doesnt go outside its limits and depends on the type and power being exercised. The AG has said there's 4 areas to be looked at

1 regards the expert advice received from the Equality Hub, but we dont know which areas they're experts on. This hub is an internal govt body and it's not approp for you to regard this as expert.
J What do u understand LA as the status of the hub?

DB we asked and we dont know. It's internal advice from unnamed experts. It's internal so therefore it's inapprop to take as expertise. Evaluative and predictive decision is stated, but ...there's evidence from other jurisdictions that was considered re GRCs. Some evidence is

DB subjective. How much is political judgement involved? It must be exercised against a balance of the evidence, eg wrt IT systems. Finally, the order [missed] Re the timing, the order hasnt been considered. The R says that criticism isnt about the proceedure but fact of

his decision not yet being published. Time wasnt afforded to debate the order, altho HoC didnt give time for a vote
J So my hands aren't tied - u make no criticism sre impeachment given the record of events. And the court can supervise here?
DB Yes

DB Release from FOI re Prince of Wales & UKG and spider handwriting
J Yes, was about privilidge and prep for kinghood
DB The release was ordered but the DA wanted to veto this. Lord N's judgement re a clash between the exec
J Is this significant?

Is it an approp use of s33, as a loose descriptor of what happened. Are we dealing w something sl different as it about exercise of a statutory power?
DB Yes, its different but still v signif re separation of powers. How do u look at exec veto, how is it applied? Its important.

DB Both involve separation of powers, as explained by SW who have explored the case of Evans. Their analysis is sound and well engaged/explored.
DB The effect was to run up against the constitution. If s35 was to cut across powers then crystal clear language wld have been used.

DB No doubt DJ will explore this with you. SW say re comparable provisions, again looking at FOIs, Evans was concerned that ministers refused disclosure and the AG vetoed disclosure. Discussion of higher test and reasonable grounds so the proper grounds were rationality

DB Parliament conferring power and intentions of parliament [ sorry v fast and confusing here] Language of reasonable grounds falls short w disagreement of the AG. Lady Hale agrees re ? Intensity of argument and vetoing decisions - para 130.

So SW agree w the Supreme Courts decision. Parliament cannot exercise its power merely as it disagrees without crystal clear language. Parl passed the bill following full events in parl and 2 consultations. Whereas the UKG didnt go thru a process like this. SWs assessment is

right and powerful. A decision to make a s35 order calls for the type of scrutiny, espec as a veto of legislature, so look closely at the logic and processes used. To ensure constit balance described earlier. this leads to what is req of a decison maker b4 deciding?

DB Common law requires he makes use of facts [Taneside duty] and the Q for the court is did he ask himself the right Q and have the correct info to make his decision? I won't go further into this case now but it's detailed in bundle. Para 100 is relevant

DB Obligation on decision maker is only to make reasonable efforts, and not the manner and method of enquiry. It shld only intervene if ?? No 4, court shld establish what info it has and ..., no 5 covers duty to consult outside bodies and procedural methods - needing all material

DB This has recently been used. The Wednesbury challenge re intensity of review. Bit looking at compliance we need a detailed look...
I say these are the relevant principles, esp Tameside, and want to apply these to this case. SoS didnt fulfil Tameside duty

DB His outcome wasn't reasonably open to him. Redacted docs are 626-630. Further material was provided later on Aug 11th. The 1st advice he received seems to be item 17 in P's bundle, mentioning support for passing the bill. this doc focuses on opposition to the bill.

DB The rest doesn't add anything. The other material he had available (7 docs) including form the UN Spec Raconteurs on SOGI and VAWG, Sex Matters, EHRC, BMM Letter, FWS letter, Letter from KPSS.
6 are hostile to the bill - only UN SOGI is not. this expert is an independent

DB human rights expert who monitors policies and govts. This note is important re risks and abuse. His opinion, more than 250 million ppl live under self ID countires, and over 100 million more under ?. He says he hasn't received any info re self ID used by predatory men in these

DB juridictions. And they're no crimes by trans or NB ppl recorded. In other words, countries with Self ID there's no systemic evidence of gender or sexual crimes by predators. There's no evidence that the Scottish wld have a different experience.

DB "When the known facts point so clearly in 1 direction...there is no rational reasons for his view". This is the conclusion yr Ladyship should draw. [SW and Equality network mentioned].
The SoS didn't appear to look at positive impacts of the bill - see the written evidence.

DB Nothing for coming to a reasonable concern by the SoS. Letter 6th Oct on page 321 [other pages named] Shona Robinson response? This is helpful at setting down all the evidence used by the SP in decision making. As I emphasise there's been extensive preparation for this bill

Db No SoS shld have looked at evidence in favour of the bill, as well as against. He shld have looked at large majority in SP. The Tameside duty is important and the SoS shld not close his eyes by looking at 1 side of the debate. If held to be lawful, it empties Tameside duty.

Db He didnt look at all the evidence and his decision wasnt lawful
J you're talking about all the evidence put in front of the SP at its various stages?
DB Yes, all of these issues were explored in detail
J So he shld have familiarised himself w the info and shown he had done so?

DB Yes, he has not looked at all the evidence
J How does this sit with page 8 reference to L Hallett's duties, only to inform himself only as far as is reasonable? And also a court intervening as far as is desirable?
DB I've started w constit and this is a veto of the highest

DB legal authority [missed] He cant close his eyes to ones side of the argument. I touched on this in my opening submissions - the wider the discretion the more important it is he has all th info in front of him
J It's not unfettered discretion for the SoS to issue s35, there are

J fetters. Where does this fir w the wider discretion DB?
DB It's not what I contend but the AG contends this. The Tameside duty has to be fulfilled
J It has to have bite
DB [quiet]
J We are in uncharted waters here and I wonder where it sits. It's not about competance

J It's about the impact of the competence. It's got a lot of legs. It's the competence of the
DB Can I look at this over lunch?
J When wld be best for you to stop?
DB I was going to turn to another issue so it wld be helpful to adjourn now
J Court adjourned until 2pm

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