Thread by @nickwallis

Welcome to Day 3 session 2 of For Women Scotland vs Scottish Ministers - FWS want the Scottish Prison Service guidance of putting men in women's prisons ruled unlawful. Previous tweets from today can be read here:

https://x.com/nickwallis/status/2019351265696702958?s=20

Everything I tweet is a summary or characterisation of what is being said. Nothing is a direct quote unless it is in "direct quotes"

LR - Lady Ross - judge
GM - Gerry Moynihan KC SM lead counsel
SM - Scottish Ministers (respondents - so R sometimes) FWS - For Women Scotland (petitioners so P sometimes)

AO - Aidan O'Neill - FWS lead counsel
Articles (eg Art 8) - these are the articles in the Human Rights Act, sometimes known as convention rights because the HRA was formalised into UK law from the European Convention on Human Rights

The rights engaged by this court case are said to be:

Article 2: Right to life
Article 3: Freedom from torture and inhuman or degrading treatment

Article 8: Respect for your private and family life, home and correspondence
Article 14: Protection from discrimination in respect of these rights and freedoms

Art 8 includes the right to express your identity including a trans ID
SC - Supreme Court
TM trans man (a female)
TG or T transgender
TW trans woman (a male)

TIF - trans-identifying female (a female)
TIM - trans-identifying man (a male)
F or W - female or woman
M - male or man

SPS - Scottish Prison Service
EHRC - Equality and Human Rights Commission (intervenors who spoke yesterday - Mrs Scott)
SHRC - Scottish Human Rights Commission (intervenors who spoke yesterday - Mr McBrearty)

ECHR - European Convention on Human Rights EA - Equality Act 2010 - ruled on by SC in 2025 which stated sex is a biological reality

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[JR is back. Court is sitting]
JR give me a second Mr M...

JR right just a moment... yes. Right.
GM I am optimistic about a 3pm finish - but if we can start at 1.50pm I'd be grateful.
GM okay - SM must act according with convention

rights. In Somerville [case law] again about segregation was whether a challenge under HRA applied to the Scotland Act. It was a 5 day hearing. The point in Somerville was re s53 in the original Scotland Act was that the Lord Advocate if the issue was enforcing UK legislation

So Lord Advocate was not beholden to s57.2 - so SM were subject to a literal reading of s57.2

Reads par 32: "A further indication of what was intended by Parliament is to be found in section 57(3) SA. It extends to acts of the Lord Advocate in prosecuting any offence, and in his capacity as head of

the systems of criminal prosecution and investigation of deaths in Scotland, the protection that is afforded to a UK public authority which acts in ways that are inextricably connected to primary legislation that are

described in section 6(2) HRA."
GM so the LA could proceed. It continues:
"But it does not extend this protection to any other
member of the Scottish Executive. A requirement that a

person who complained that an act of the Scottish Ministers which gave effect to primary legislation which could not be read otherwise was outside competence because it was incompatible with the Convention rights

must seek his remedy under the Human Rights Act on the ground that it was made unlawful by section 6(1) HRA would be contrary to the system that is indicated

by this subsection read together with section 57(2). It would provide the Scottish Ministers with a defence under section 6(2), albeit in this admittedly highly

unusual situation, which the devolution system that the Scotland Act lays down denies to them. To achieve consistency with that system a remedy must be available against the Scottish Ministers under the Scotland Act."

GM the HoL was asked to rule on a rag bag of issues, but in this case an ind had a right to sue under the HRA or the Scotland Act. If they sued under the Scotland Act the 6.2 defence was not available.

I am not aware that this issue has arisen subsequently - where 67.2 might bite - denying a 6.2 defence. It was anticipated to be rare.

GM so far as I can see there is no reason to see how 57.2 has changed - it's straightforward prohibition on SM acting in contravention of convention rights.

GM goes back to Somerville par 38: "The First Division said in its opinion in this case that I was
mistaken in my construction of section 100 SA: paras 72, 76. But I see
no reason to depart from what I said about section 100(1)(b) in R v HM
Advocate. On the contrary, I am unable to accept their interpretation of
that subsection or of section 100(3). Nor am I able to accept their
interpretation of section 129(2). In my opinion, a careful and accurate
reading of these two sections, taken together, provides ample support for
the conclusion that Parliament intended that a person whose complaint
was that an act or a failure to act of a Scottish Minister was outside
competence because it was incompatible with the Convention rights
should be able to seek a remedy on the ground that this was ultra vires in
terms of the Scotland Act. They do not justify the contrary conclusion
that he must do so, and can do so only, under the Human Rights Act.
The limitations that the Human Rights Act imposes on the obtaining of
such a remedy are only relevant to the extent that section 100 makes
express reference to them. As section 100 does not mention the section
7(5) HRA time bar, that limitation does not apply to these proceedings
as the petitioners’ case is that the acts or failures to act were outside
devolved competence within the meaning of section 54(3) SA."

GM so it is clear that SM possess the ability to defend themselves under UK legislation - the Equality Act - they must act in accordance with the Scotland Act

[this is the argument that the Equality Act is not binding on SM so they don't have to accept sex is biological and can make policy without regard to what flows from that]

GM so there is within devolved competence observing obligations under the Human Rights Convention

GM that's my submssion
AO it's common ground
LR I'm not surprised
GM so SM cannot act incompatibly with convention rights and must do what they can within devolved competence and if there is competition then SM can give precedence to Convention rights

GM goes back to 1998 Scotland Act to discuss Equal Opportunities - legislation.gov.uk/ukpga/1998/46/…

GM gender recognition is not defined here, but race and sex is "“ Equal opportunities ” means the prevention, elimination or regulation of discrimination between persons on grounds of sex or marital status, on racial grounds, or on grounds of disability, age, sexual orientation, language or social origin, or of other personal attributes, including beliefs or opinions, such as religious beliefs or political opinions."

GM in 1998 there were cases going through Europe and one case brought gender reassignment (GR) through sex discrim - it anticipated developments in community law. Equal Ops is not defined by EA or protected chars (PCs) in the EA. So L2 [see the above link] is not taking the EA as the sole measure of equal ops. That's in part a historical feature, but even today it acknowledges in terms of the HRA we have Art14...

GM and that assists because the Equal Ops provision [reads: "Equal opportunities in relation to the Scottish functions of any Scottish public authority or cross-border public authority, other than any function that relates to the inclusion of persons in non-executive posts on boards of Scottish public authorities with mixed functions or no reserved functions. The provision falling within this exception does not include any modification of the Equality Act 2010, or of any subordinate legislation made under that Act, but does include -

(a) provision that supplements or is otherwise additional to provision made by that Act;

(b) in particular, provision imposing a requirement to take action that that Act does not prohibit;

(c) provision that reproduces or applies an enactment contained in that Act, with or without modification, without affecting the enactment as it applies for the purposes of that Act."

GM so that is one mention of the EA, but the other exceptions are phrased more generally.

GM the point here is if we start with the Scotland act it has placed on ministers a legal duty to act compatibly with convention rights. And that takes us to the next q which is whether there is a conflict with the SM's duty to the Scotland Act and the EA.

GM my primary position is that it is possible to construe and apply the EA with convention rights - with a case by case analysis permitting putting TG prisoners in a prison of the oppo sex in appropriate cases

[is reading from case law which I haven't been able to find]

GM public authorities - have to give effect to convention rights and in this case that is SM. There is no margin of appreciation. The interpretive obligation is on SM so far as possible. that takes us to...

GM whether it is possible to construe the EA in a convention compatible manner. This picks up from the work of JI yesterday (see my report: )genderblog.net/fws-day-2-dawn…

GM as to whether the treatment of TG prisoners is the exercise of a public function. I do not deny and I accept that what I call downstream issues are the provision of serviced - education health food clothing etc

[s29.1-5 of the EA - which is about provision of services s29.6 is about supplying a public function]
GM we say that the SPS policy falls within s29.6 which exists for a purpose. It is there because the UK parly expanded the Goods and Services act to include core public function

GM and that is why sched22 exists - if you are performing a public function as required in law - that exhausts your duties. Parly was mindful when enacting s29.6 public authorities are defined by ref to the HRA

[this is dipping into arcane legalistic stuff again which may or may not end up being relevant]

GM parly was mindful in asserting s29.6 of an obligation not to discrim via the HRA - so 29.6 was not innovating - it was already an obligation, but it then links to sched22 - acting in accordance of a requirement of an enactment has some strictures...

GM I don't disagree with AO - the primary enactment we're dealing with is rule 126 - the sig of rule 126 would be if one had to defend having two separate estates - you would not need to go beyond r126

- you don't need to go to schedule 3
LR schedule 3 or schedule 22?
GM schedule 3 [explains how]
GM rule 126 which allows separate M and F estates there can be no complaint about it under sex discrim because it is an enactment

[GM is offering various routes by which LR might be able to reach a judgment in SM's favour through application or disapplication of various schedules to the EA and the primacy or otherwise of other legislation. I think.]

LR all that you are saying is that these are alternatives rather than cumulatives?
GM yes that's it at its simplest. these are alternative routes. I differ from Mrs Scott [EHRC] - they are mutually exclusiv

GM to the extent I disagree with Mrs Scott and to an extent I don't - the two provisions s29.6 and s29.1-5 - you either are exercising a core public function or you're not - you can't exercise a function and a service at the same time

GM I argue SM are promulgating the SPS policy under s29.6 - but the downstream effects - food, clothing etc are under s29.1-5

GM we acknowledge there could be an argument that even if this first level issue entails the provision of a service - going to prison [and explains how LR can get to his conclusion if it does]

GM none of this is straightforward. When it comes to the SPS rules - they're not happily worded - please adopt a mindset of Lord Roger - if we can make this work - do. None of this is easy. it's v complex, but if you can make it work, do

GM if the legislation requires a case-by-case analysis, then that's what they must do.

GM takes her to Z v Hackney, Lord Sales: "114. The proper approach to construction is that legislation should be read and given effect in a particular case according to its ordinary meaning, unless the person
who is affected by it can show that this would be incompatible with their Convention rights under the HRA or some provision of EU law as applied to their case. Only then do the special interpretive obligations under section 3(1) of the HRA or under the Marleasing principle come into play to authorise the court to search for a conforming interpretation at variance with the ordinary meaning of the legislation. This means that the same legislative provision might be given a different
interpretation in different cases, depending on whether Convention rights or EU law are applicable in the case or not. Although at first glance this might seem odd, in
fact it is not. It simply reflects the fact that in the one case circumstances are such that an additional interpretive obligation has to be taken into account, but in the other case no such obligation is in play: see R (Hurst) v London Northern District Coroner"

GM continues to read "If the position were
otherwise, Convention rights and rights under EU law would be given disproportionate effect in domestic law, and statutory interpretation would become an exercise in the imaginative construction of theoretical cases in which such rights might be in issue in order to change the interpretation of legislation in cases where
they are not."

GM so his lordship is saying let's not get into a hypothetical - let's deal with a case as it presents.
LR I see that - I'm trying to connect this with yesterday's argument - that this court should not be looking at any of the q's as there is no individual here before

... the court. Are you asking me to construe this legislation in a convention compatible way - or is this for SM.
GM this is to do with the penumbra of hypothetical cases. Ministers have to construe and apply legislation in this way in a manner that's compatible with the HRA

GM because of their obligation they are required to adopt a case by case approach - its nec for HRA compliance. The contrasting position is no exceptions, irrespective. It's focused by my learned friend's interpretation of s126 which says male and female prisons.

GM we understand his proposition that a man cannot be held in a woman's prison
LR but you're saying a person with convention rights engaged they are required to construe their obligations in a way that allows them to respect those convention rights

LR the default position is segregated prisons unless a TW can say my rights are engaged of any kind and you would say every TG person... you would say a TG person would have art8 rights qua a TG person - so it's not an exception it happens every time

GM but it's 8.2 which engages the case by case approach. Every TG person has 8.1 rights - respect. Not every TG prisoner goes in the F estate - it's 8.2 which requires case by case

LR does not that presume a TG prisoner has a right to be in a prison of the oppo sex unless they're dangerous. It's a presupposition

GM yes
LR but where does that right come from
GM best articulation of it is in Lady Hale in R (C) "This puts it beyond doubt that the way in which the law and officialdom treat

... people who have undergone gender reassignment is no trivial matter. It has a serious
impact upon their need, and their right, to live, not as a member of a “third sex”, but
as the person they have become, as fully a man or fully a woman as the case may
be."

GM - they have a RIGHT

LR P are attacking your policy on a fundamental level, but there is an agreement the SPS policy as it currently stands is defective
GM it requires consideration. AO has raised the fundamental issue and that's what we're here to discuss

GM the issues raised by EHRC and SHRC may require consideration - but that's an issue for another day - we need to deal with the fundamental first or we'll be back here.

LR it does appear SM want the issue of convention compatibility resolved. I wasn't sure you want me to dismiss this petition for want of relevancy if that is the argument SM want me to resolve.

GM if I could have my cake and eat it, the bigger slice is the issue raised by ministers whether they in principle have a right to decide, the smaller case is that P are going to far too fast to reach for schedule 3 - a sex discrim/harassment issue

GM we say there is no sound basis to elevate sched3 to a positive obligation.

GM if I can again attempt to square the circle in terms of hypotheticals - they have discrete legal responsibilities on all sides - prisoners of all categories - they need to know where they stand

GM if SM have a discretion to act in a way which is convention compatible that's what they should do. s126 (I think this is of the 2011 Act in Scotland which requires male and females to be segregated in prison)

[they might be rules rather than law - but I think it's an enactment]
GM in prison rules I'm not going to suggest that man and woman mean anything other than biological sex.

"126.—(1) Female prisoners must not share the same accommodation as male prisoners.

(2)  The respective accommodation for male and female prisoners must, as far as reasonably practicable, be in separate parts of the prison."

GM I contend that accommodation means a CELL

GM and LR are looking at the rules "“accommodation” means the cells or rooms used to accommodate prisoners for living and sleeping purposes;"

GM so as per the rules this means cells. And this is what has happened with TG prisoners. The only instance in which there might be two people of the oppo bio sex in the adjacent cells is with TG prisoners

LR would a more natural meaning of s126 not be to make it clear to have prisons which have a shared overall estate - where you have separate parts. Is 126 not saying that?

LR otherwise why does this exist. This rule cannot be directed at saying you can't have a man and woman in the same cell
GM that might be the instinctive reading, but you have to look at it in context

... of the subsequent authorities. These rules are not well drafted. It might be the natural reading, but because accommodation is defined in the way it is - it has been interpreted like that.

GM prisons are not operated on the reading I am advancing, except for TG people.

GM I am not going to FWS for the principles of interpretation - we're in that discrete area of HRA - I'm not standing on 126.1 I'm standing on 126.2

[court rises for lunch - we are back at 1.50pm]
Some pictures of today - Trina Budge from FWS on the right with supporter Jo Marshall

Arty court walkway shot

I'll save the others for later. If you have enjoyed reading my trying to get to grips with abstract principles of law over the last three days, please consider a small donation:
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This thread will now end. The afternoon session will start on this tweet here:

https://x.com/nickwallis/status/2019398769092227164?s=20

@threadreaderapp unroll pls