Thread by @tribunaltweets

We are covering today the Scottish Government's application for a judicial review of the UK government's Sec 35 notice on the Scottish Gender Recognition Reform. See this morning's coverage here:
open.substack.com/pub/tribunaltw…

Expecting resume from 2 pm. The matter is constitutional arguments and administrative powers and can be difficult to convey clearly. We will endeavour to do our best.

Abbreviations:
PC Protected characteristic
EA Equality Act 2010
GR Gender Reassignment

Resuming. DB for the SG. There should be a balanced evaluation of the evidence and there is not evidence that the requirements have been met. The duty cannot be satisfied in these circumstances and no reasonable SS can be said to have done so.

J - thank you for that you might be arguing that the SoS should consider all of the material, but I now see that you're arguing it should be a balanced assessment.
DB - the SoS house of cards collapses when considering the Eq Act.
DB - Moving on the SoS says he has considered

various aspects, and these are an overlap with the rationality test. The SoS view that the bill would have an adverse effect on the operation of the law on reserved power.
DB - moving on to the requirement that the SoS would have reasonable grounds to believe that it would

have an adverse effect, he has considered irrelevant matters and thus has acted irrationality.
DG - a decision maker has 3 things to consider; things they must take into account, things they must not take into account and things they may choose to consider. Failure to do 1 or 2

vitiates the decision. The rest is subject to the test of rationality. Citing case law; the AG has relied on a particular case, contains a summary based on credence that adds nothing to the foundational law. I take issue with that for the reasons I'm about to come on to.

The first irrelevant consideration is the divergence between the law in E&W and the law in Scotland. Divergence is relied on by the SoS. Divergence between the law of EW and Scotland is a type 2 matter, the SoS was not allowed to take it into account. This is not a reserved

power. Another way - the UK parliament has decided that there can be divergence between the law of E&W and S. The logic of reasons relied upon and the SoS objects to and would veto, would force conformity on gender between E&W and Scotland. My 2nd position is that divergence

is a type c consideration, and he should not have consideration to it.
DB - potential increase in fraudulent applications because of relaxed safeguards is an irrelevant consideration. The proper purpose of Sec 35 is to block royal assent of legislation that is not subject to

devolved powers, not a policy that he disagrees with it.
Further there is no credible evidence from other jurisdictions to suggest that fraudulent applications are not a problem. Now quoting from SW submission. The SoS has presented no evidence to suggest that Scotland will

be different from the international experience. The SoS position was drawn from irrelevant considerations and thus falls to be reduced.
DB. - the last part falls upon reasons. This ground is directed at condition 3, the requirement to provide reasons. These reasons are

inadequate in law. I start with the proposition that reasons must tell the reader and the court what was taken into account and how that influenced the discretionary decision. The statutory obligation is to provide those reasons. The common law establishes that those reasons

be adequate to support the decision. The requirement to provide reasons is a condition of the legislation and the order must contain those reasons and it is a matter of substance not form. The reasons must be adequate. When considering if the SoS has discharged his obligations

we need to look to the order to see his reasons and to scrutinise them.
J - what do you say about the public statement of reasons.
DB - the law requires the SoS to include the reasons in the Sec 35 order, if we're applying the legislation correctly it must be in sec 2.

J - what do you say about the policy statement?
DB - I say it's irrelevant, if it's to be looked at all, not just if they reach the standard required for section 35.
J - I'm looking at the wording of sec 35
DB -it says the order shall state the reason
J - I'm reading the law,

J - the query in my mind is whether the SoS has reasonable grounds, do all of those need to be in the order.
DB - applying these to the case before the court, the reasons in Sch 2, are not adequate, it might be helpful to have it in front of my lady as I make my submissions

DB - the concern about different regimes and safeguards around GRCs is irrelevant and affects various other parts of the order. The main arguments made by SoS are on the application of EA 2010. As I have explained, this is not correct.

And if that is so, then nearly all of the concerns about the EA are not correct, the problems relating to clubs and associations, public sector equality duty and comparators, exclusions are acknowledged to already arise as a result of the GRR 2004.
(some difficulty with docs)

DB - para 50 in considering the 4 issues set out above, these arise already from the 2004 Act and the 2010 Act. There are exceptions, allowing to exclude. But these are not new problems.
J - existing problems will be exacerbated by the changes, increase in the cohort and the

ease of obtaining a GRC.
DB - what the SoS has not done is provide any evidence that an increase in the numbers of GRCs will create more problems. He has not provided any evidence that an increase alone will have an impact or an adverse effect, he needs statistical evidence.

J - the SoS has only to look at what is reasonably available, and the statute only allows for 4 weeks to make the decision to intervene. You are suggesting an onerous standard.
DB - he has to provide some evidence that there will be an impact on the operation of the law

as it stands. The main theme of my submission is that the bill does not affect the operation of any reserved powers. A mere increase in people using the law is not evidence of an impact or an adverse impact on the operation of the law. The numbers who might seek a GRC in

Scotland are a very small part of the population and even smaller when considered against the UK population. More people using a provision of the law does not constitute an effect on on the operation of the law.
J - your submission is that more people using the law

does not result in an impact. I'm considering that, I can see that if many more people were entitled to use a service, such as the NHS, wouldn't that be an effect on the operation of the law.
DB - it might have an impact, and there might need to be regulations but that not

does not have an impact on how the law operates.
DB - the UK has changed the application fee for a GRC and this many have a much bigger impact on the number of GRCs granted than the Scottish changes.
J - the law doesn't contain a requirement for a quantitative assessment or

measurement of what an adverse effect is. Is it your position that there must be such an assessment.
DB - the SoS relies on the increase in numbers as his reason that it will have an adverse impact on the operation of the law, but he hasn't produced any evidence that such

an increase has any impact on the operation of the law. He can't produce any such evidence. He really has to have an evidential basis and he doesn't have that.
J - there is nothing in your bundle about the increase in UK applications unless I have missed.
DB - what I am

arguing is that there is no evidence of the increase and that his assertion that fraudulent applications would increase, this is not consistent with international experience. SW raises issues that the Eq Hub has raised only potential issues. The statement of reasons only

sets out things that may or might happen with producing any evidence of those possible events.
Apologies - lost about 5 minutes due to Twitter problems.

DB conts - now discussing how it might impact equal pay claims. The Eq Net points out that there is so much more to this issue and more analysis which doesn't actually say why there would be an adverse impact on the law. They point out that equal pay claims are capable of being

of being brought by either sex.
J - section 12 deals with 2010 Act,
DB - the SoS language here, that it may impact, it may increase, that doesn't meet the test.
J - if the decision maker believes something may happen, that's not enough, it needs to be founded on an evidence

base.
DB - yes
DB - one single sex clubs and associations that require ID, most use ID that can be changed without a GRC thus it is irrelevant
J - is it possible to change a passport without a matching birth certificate
DB - it is possible to do so

J - further questions on this point
DB - evidence from Stonewall and Eq Net are that this is the case
J - a person who is born with male on the birth certificate can request a driving license that says female without a GRC, it's a point of education for me
DB - so I believe that

birth certificates are never required and the forms of ID that are used can be changed without a GRC.
DB - now onto PSED - there's no evidence to support the assertions made about PSED. It will be more difficult to monitor differences between men & women if there are more

GRCs, the PSED would have to be applied differently across borders. PSED is relatively generic and references are made to data collection and impact. These are high level and without specificity. SW submission says no cogent evidence to support the assertion that PSED will be

impacted. For example, no evidence provided that it will make it more difficult to track disparities between biological men and biological women. This is only a purported problem and there is no example of the adverse effects. The vast majority of data is done by self id of

sex without guidance. Thus there is no possibility that the data would be skewed by additional GRCs. Self ID would not have a meaningful impact on gender pay gap for example. Dealing with PSED - SW says that the SoS has mischaracterised the problems and doesn't say what

provisions are impact. SW points out that PSED is broad and multi-faceted and is not limited to the collection of data. The possibility of data collection being impacted is not sufficient. Sec 35 requires that the law be impacted not its practical difficulties. More broadly

the EA category of sex may be wider than currently envisioned. This is a social change, and will be captured by monitoring and is not an impact on how the law operates. Policy reforms may result in improved healthcare and outcomes and change the number of people possessing

a protected characteristic. More people using a legal provision doesn't change the operation of the law in a reserved matter.
DB - in relation to PSED the SoS has not evidenced sufficient reasons to invoke Sec 35.
J - is there a distinction, looking at the points made by

Stonewall, we are talking about different regimes operating in different parts of the UK. We are not talking about a shift applying across all of the devolved administration. Is there a distinction here?
DB - they make the point that data analysis and collection should evolve

with the times.
J - I accept that. I'm trying to understand how this applies to a difference emerging within 2 jurisdictions within the UK, SW submission implies that same across the UK.
DB - there may be differences in how PSED applies, but its not just an impact but an

adverse effect. Not just different but adverse.
DB - SoS says an increase will make it harder to monitor differences in men, women, transgender but he doesn't explain why. The SoS doesn't explain why when the vast majority of data reported is on the base of self defined sex.

And this is consistent with what the chief statistician for Scotland has said in his evidence before the Scottish parliament. This is explored in detail in the analysis that's been done by the Scottish government compared to the work done in the Sec 35 order which is wholly and

utterly inadequate.
DB - not on to impact in single sex schools. Will not be relevant for the rest of the UK and there are only 6 single sex schools in Scotland. The SoS has produced no evidence of how those schools currently deal with transgender pupils. No schools objected

when the GRR was being considered by the Scottish parliament.
(some discussion of single sex schools - all independent or not - DB will revert)
DB - now moving on to impact of GRR on international GRCs. Several countries on the UK list now operate a system of self id.

And the intention to possibly amend the list to take self-id countries off of it is irrelevant.
J - is the point that Scotland will be seen as a soft touch?
DB - I need to check the age at which self id is permitted, some permit self ID from age 14. The difficulty in the SoS

order is that he has not produced evidence of why this might be a problem. That is not good enough.
DB - every paragraph of reasons in the order are flawed and the order must be reduced. If J believes that some of the reasons are flawed but others are not, if J finds some are

flawed but others are not. But my submission is that if reasons starts to fall, then a critical mass is quickly reached and the order must fall.
J - the AG says the opposite, that only one reason must stand and even if all the others fall, then one is enough.

DB - Your ladyship needs approach this very serious matter, this is an override of executive power on the actions of the Scottish parliament. You need to look at the seriousness of this matter and it's operation on the law.
J - your argument is critical mass may be reached

where the entire order must fall, but DJ will say that if one stands it is sufficient. What is critical mass and when is it reached?
DB - I will need to reflect on that (consulting with colleague) can we come back on that particular point?
My lady has all of my points

on the quality of the review required. I will look at authorities on the point if one reason stands that is sufficient. I will think about the proposition and come back to you on that point.
DB - I need info on passports obtained (sex markers), how many addl GRCs were issued

and the authorities on evidence required.
The issue at hand is gender recognition but it speaks to important constitutional provisions of the power of devolved parliaments. Invoking sec 35 is a last resort and should be subject to supervision by the legislature and the courts.

DB concludes.
J - DJ are you happy to proceed now?
DJ - yes, I begin by asking my lady to dismiss the petition. Now can I respond to the points just made (getting out the reserve bundle)
J - I have it, what number
DJ - page 723

DJ - reading from authority - a decision can survive even if there is an error in a reasoning used to reach it, if it is the only reasonable judgement, etc. In all such cases the error should not undermine the overall judgement. Consider whether it undermines one or all of the

reasons, It's important that each individual reason is set out in the order, they do not stand or fall together.
DJ - back to the beginning, what this case is not about, we agree this case is not about the merits of the policy of GRR. It is not about a policy disagreement

The SoS disagrees because of the impact on the operation of the law. It is not about legislative competence. Throughout her submission DB has asserted that the SoS was required to conduct the same type of analysis etc that the Scottish parliament has undertaken. His concern

is to protect the operation of the law in the UK, not to create legislation.
DJ - first on the law, then move on to the reasons and evidence. Very well known cases, 8 of them, that I believe that the court should consider. The court's role in interpreting section 35 is to give

the law it's ordinary meaning. The concern is to give effect to the ordinary meaning of the words used.
Second point - there are checks on the legislative competence of the Scottish parliament, such as sec 29 but what is sec 35 about? It is an express recognition of the

possibility that the devolved parliament may pass a law that has adverse impacts and is outside its power.
J - now questioning a particular document that DB has referred to, DJ is disagreeing that it is relevant because it is a ministerial statement.
DJ - it cannot be

overemphasised that sec 35 is not sinister or extraordinary. It allows the Scottish parliament to legislate and allows the UK government to intervene, refuse royal assent to stop legislation even if that is within the powers of the Scottish legislation.

The nature of the SoS powers drives the function of court. The court's power is not to act as the primary decision maker but power is one of review. We have moved to a point of whether the decision fell within the reasonable range of responses that were available to it.

DJ cont - it is consistent with the function of review, that the review should be based on the material that was available to the decision maker, not on all evidence that could have been gathered or might have been gathered. The rationality of the decision must be based on

the evidence available to it. The decision is tested by what was available to the decision maker. The point raised in this issue, there is quite a lot of material before the court, including that from the intervenors that was not before the decision maker and should not be

considered in this case.
J - the LA's contention is that the SoS should have had more evidence, sought more evidence before his intervention.
DJ - yes, I understand that. This is a good place for me to pause for the day.
J - yes, we will rise for today and reconvene tomorrow.

@threadreaderapp unroll please.