Thread by @tribunaltweets

Submissions (oral arguments) continue today at 10 am as the Scottish government seeks to overturn the Sec 35 notice from the UK government on the Scottish Gender Recognition Reform Bill. Our coverage from yesterday here tribunaltweets.substack.com/p/scottish-min…

Abbreviations (apologies there are many)
J Judge, Lady Haldane
SG Scottish Govt, the Petitioners
DB The Lord Advocate Dorothy Bain, KC
DR Douglas Ross KC
PR Paul Reid UKG
UK Govt, the Respondent
DJ David Johnston KC
CP Christopher Pirie KC

MD Megan Dewart
GRR Gender Recognition Reform Bill - Scotland
SoS Secretary of State
s35 Section 35 SA Scotland Act
RA Royal assent S
1 Schedule 1 of s35 order
S2 Schedule 2 of s35 order
PS Policy statement
GRC Gender Recognition Certificate

GD Gender dysphoria
PC Protected characteristic
EA Equality Act 2010
GR Gender Reassignment
PSED - public sector equality duty
SP Scottish Parliament
SGRC Scottish GRC
NOA Notice of Acceptance??
AG Advocate General (UKG lead counsel)
JR Judicial review

MOU memorandum of understanding
E&W Eng & Wales
s9 section 9
SW Stonewall
NOA - notice of argument
HoC House of Commons
Q question

Now waiting for the livestream to start.
Lady Haldane has arrived.
DJ - I took the court through my first 4 points yesterday on the decision to make the order, I have 4 more to come. Point 5 is that intense scrutiny is important when a case is concerned with fundamental

personal rights. It's about the intensity of review that is required in those circumstances.
J - technology not keeping up, bear with me.....bear with me it's coming up as a blank page.
Resuming
DJ - it says the nature of JR depends on the context that subject to the weight

the court must consider the gravity of the issue. The gravity of the issue in the cited case is the right to life, the most fundamental right, that is the context of the review.
J - the SG might say in response that this is an issue of constitutional matters so also a weighty

matter
DJ - it is indeed. I'm not trying to make light of the matter. Quoting 'at one end of the spectrum is the level of JR given to political matters and at the other end of the spectrum is those infringing on individual rights and a lower threshold is use'. We know intense

scrutiny is required for human rights. But we are not concerned with human rights in this matters but political matters.
J - you're saying that this is a political judgement and requires a lower level of JR.
DJ - yes, that's what I'm coming to, and I will develop further

that certain kind of decisions are entitled to a level of respect. Either because of the expertise of the decision maker or the nature of the decision being where the courts are not best placed to intervene.
DG - referring to next case; different considerations apply to

human rights and constitutional matters. The executive's assessment is not conclusive but may be given great weight. Rationality is an important characteristic but not the only one. It is also about predictive nature of future impacts of a certain course of action.

This analysis is consistent with the convention right, the person charged with making the decision has the competence to do so.
The assessment of the implications of fact may be given great weight depending on the expertise of the decision maker etc.

J - the criticism as I understand it was that the Eq Hub is simply a government department so one part of gov is giving advice to another
DJ - yes, I heard that as well and I don't understand it. Govs employ people to give them advice or contract with them to provide it.

The SG does exactly the same thing.
DJ - 7th point is about the wording in sec35 1b 'reasonable grounds to believe', modifications of the law as it applies to reserved matters. May be helpful to exam one case in which similar words have been reviewed by the court.

The background, sanctions with regard to Belarus. The minister must have 'reasonable grounds to suspect' a person to apply sanctions to. It's relevant for the court to consider how that's been interpreted. A distinction drawn between 'reasonable grounds to suspect'

the difference between a state of mind and a state of affairs or fact. The decision maker must consider information available to him or reasonably available to him. Not the same standard as evidence in a court, can be hearsay, etc. The reasonable grounds to suspect criteria

does not require a finding of fact. My submission is that the same point can be made about a reasonable ground to believe as reasonable grounds to suspect.
A decision maker trying to assess risk in advance is very different from trying to determine if someone has done some

thing wrong. A difference between freezing funds on a reasonable belief that they might be used for terrorism and arresting and trying someone for terrorism.
J - should we read on
DJ - yes, the requirement to have sufficient evidence to make an assessment.

DJ - the notion of risk is inherently forward looking, and therefore is predictive, proof on the balance of probabilities is not relevant because nothing has happened yet.
Finally, the conclusion from this discussion is that this court cannot stand in the shoes of the decision

maker but can only assess rationality of the decision by discussing the 'wensbury' (ph spelling) as a reasonable standard, and the difficulty of making expert judgements as a government minister. 2 more cases to touch on - the case of Evans, the LA and SW both seem to rely on it

DJ - the reasoning in that case is not relevant to this circumstance. The executive in that case overruled a tribunal decision that had heard evidence in a public tribunal. 'it's a very long way from making it perfectly clear that the executive can overrule the decision of a

court because he doesn't like it'. The powers of judiciary and the executive should be jealously guarded.
DJ - my 2nd point is about the principle of legality. That principle has no operation in the present case before this court. '2 fundamental constitutional principles

in play, it's a basic principle that the decision of a court is binding and cannot be set aside especially by the executive and secondly that the decisions of the executive cannot be set aside by the court unless review is brought by a concerned citizen'

DJ - it is of the essence that there is a breach of fundamental constitutional principles. We can see that sec 35 does not touch either of those principles. Nor does it touch on any other constitutional principles. SW don't explain what the principle may be.

The 2 that the LA relied on are separation of powers and legislative competence. Sec 35 is as much part of the constitution framework as any other part of the Scotland Act. If there's no breach of constitutional principle, that doesn't arise.

The principle of legality, 'this appeal is not concerned with fundamental constitutional rights nor are convention rights involved'. 'We are not concerned with fundamental common law rights'. Unless we are concerned with fundamental rights, the principle of legality has no

application. Two other relevant points from this case; a point on use of external aids to make a decision, it is not relevant to help the court interpret ambiguity, statements made by a gov minister to a standing committee, these are not relevant for interpretation except if 3

strict criteria are met. Absurdity of outcome, obscurity of language and clarity of interpretation.
DJ - point 8; the obligation on the SoS is to take rational steps to inform himself. It simply rehearses the passage from the Plantagnet case. The court should only intevene

if it is satisfied that no reasonable SoS would have made the order that has been made.
A few supplementary points to make.
The 4 week time limit provides important context, this allows the SoS time to inform himself via advisors but not to undertake an extensive exercise

or evidence gathering work.
J - the SoS was not coming at this from a standing start though was he.
DJ - no dispute that the SoS was able to see things earlier if he wished to do so. But one cannot take a view on the Sec 35 issue until the bill is in its final form.

DJ - the SoS cannot determine if the bill will interact with reserved matters. Now looking at the 3 different series of amendments to the SGRR, he cannot look at the bill.
J - you could say he doesn't have a bill to look at.
DJ - the point on the amendments is for factual

context. This is not a bill that was uncontentious or uncontroversial. There were fundamental amendments considered at all 3 stages of the bill. This isn't relevant to the legal point but important for context.
DJ - there are 5 separate points: they do not specify

why a different order would address the matter, or why 4 weeks is not adequate, it is clear that there are potentially a large number of gov depts who may be affected so a section 104 order would not be a simple thing. A sce 104 order here would be in a very different context

they have been used a tidy up.
J - sec 104 has been used as a workaround to sweep up housekeeping matters. ....You said that 104 has been used in matters where there may be questions of legislative competence but there aren't questions of competence here.
DJ - I agree that this

would be an extraordinary use of Sec 104. There is no case law that speaks to whether section 104 could be used. I cannot say if it could be done.
J - don't let me push you beyond where you want to go.
DJ - the suggestion that sec 104 could be used is....

J - in fact it never has been used.
DJ - agree.
DJ - it also assumes that UK parl would be willing to make a section 104 argument which we cannot assume. Finally, if 104 was always appropriate then what is the point of sec 35?

J - does that not give rise to the question that there are 2 sections of legislation that do the same thing or overlap.
DJ - I think not, sec 104 has it's clear role, but sec 35 has clear uses as well, for acts beyond legislative competence and conflicts with reserved matters.

Sec 104 is much further along in the legislation and deals with procedural matters.
Thus, section 104 would not have been an appropriate solution.
Concluding on my 8 points.
UK parl has set the pre-conditions for the exercise of sec 35, the power is a broad one, rationality

is the touchstone for the decision, the fact gathering and the review and that represents the design of the UK parl in enacting this part of the constitutional settlement for devolution.
One final point - sec 35 is not a broad and unfettered power, the analysis is grounded in

the Scotland Act and the case law. The preconditions must be met and it is subject to the supervision of the court.
J - they suggested that your argument is that a sec 35 is not subject to JR.

J - but you haven't said that.
DJ - discussing the intensity of review that is required. the applicant was unhelpful in not suggesting the level of review.
DJ - one small footnote, the submission made to the SoS, there's not a hint there of the SoS being told he has wide

discretion, it gives him clear guidance on what he must to do to satisfy himself that the order should be given.
J - it might be helpful to look at that.
(J being directed to the document and reading)
Now looking at SG submissions on intensity of review.

None of the material from LA is helpful on the intensity of review required. The courts cannot shirk their responsibility to review because of political context of questions. This does nothing to suggest what level of review is appropriate. I hope my cases do this.

P suggests that an intense review should be carried on a number of bases. I have 5 points to cover on P's argument. There is no suggestion of any ambiguity in Sec 35 that would make referring to ministerial statements appropriate.

DJ - it is unclear what ambiguity is suggested by LA and it is my submission that looking at the authority the statements are not admissable.
J - appropriately deferential to the authority, offered as context.
DJ - two authorities that I think are not relevant, cited by the LA

It is concerned with the court exercises its power with regard to human rights acts and convention rights, the court is correct in that case to refer to that material for context but warns against taking ministerial statements as statements of intent of the legislation.

DJ - for the sake of brevity, I would make the same submission about the other case, what's being considered is proportionality and convention rights. These authorities don't lead the court to any departure from the Pepper & Hart test - these ministerial statements are not

admissable.
DJ - now turning to MoA, LA said not an aid to understanding of sec 35, it is a political agreement, says on its face not legally binding, is a later document than the Scotland act. The question of if the SoS did or did not comply with the MoA is a political

question, not a justiciable questions. Finally these case deal fundamental human rights, not the application of sec 35.
Finally, the question of accountability. Apparently because the SP is responsible to Scottish people, it is unconstitutional for the UK govt to veto

legislation. Sec 35 is a clear part of the devolution of power.
And the question of a policy disagreement is a red herring. There is nothing in the material before the court that allows the court to reach that decision. There is nothing other than an attempt to make a good

faith decision to use Sec 35. The SG had no concern for the operation of the law on reserved matters. The question for the SoS was simply a different question from the question before the SP. The 5th point is that there is a similar requirement that if there is no scrutiny

by parliament there must be scrutiny be the courts.
The SoS put the order before the UK parl, had an emergency debate, gave an explanation to parliament, those were within the reasons then set out in the order. The applicant originally said that the SoS did not give reasons

to parliament.
J - that was withdrawn
DJ - yes but its important. The P also says that an early day motion to overturn the order was not debated, this is entirely in keeping with practice in the HoC. I say that there were other methods by which they could have brought

forward debate of the order. The LA seems to admit that the parliamentary activity was adequate and consistent with its normal practice. Thus no need for deep scrutiny of the sec 35 order.
DJ - moving on, the cases submitted by P, point in the opposite direction.

DJ - the Lady might to look at those authorities.
J - looks at the speaking notes
DJ - the parliament has its own methods of overseeing the work of the executive, there may be a case for the judiciary stepping in to protect the rights of citizens. The separation of powers

argument therefore does not apply.
DJ - next matter. My submission is that the SoS had sufficient material before him to form an opinion about the adverse effects of the bill. And that decision was within the range of reasonable decisions available to the SoS.

So now we come to the P's contention that the SoS did not have adequate evidence to make the decision he made. The test is whether the decision was rational based on the evidence before him.
J - the contention was that it was unbalanced, not quantity of evidence, perhaps more

on one side than the other.
DJ - the SoS had to make a decision on the operation of the law on reserved matters and adverse effects. It is not unrealistic that was the majority of the material he was referring to.
End of morning part one.

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