What is the government up to regarding the Supreme Court’s judgment in For Women Scotland (2)? A question which breaks down into three.
- Does the government really accept the Supreme Court’s judgment?
- If so, why are its lawyers in court currently putting forward arguments which run contrary to what that judgment says and which were argued before and rejected by the Supreme Court.
- Who is responsible for giving the instructions to the government’s lawyers?
Acceptance
On the first, the government has certainly said so, on a number of occasions. Most recently, the Prime Minister said in Prime Minister’s Questions in response to Rebecca Paul MP that “the Supreme Court ruling must be implemented in full and at all levels” (see here). A clear statement? Apparently. But it begs the question as to what the government understands the Supreme Court ruling to mean. (Misunderstanding of the applicable law and previous judgments – whether in error or deliberate – has been endemic on this topic.) The judgment itself was clear: it was accepted by all parties before the judgment that anyone without a Gender Recognition Certificate remained their birth sex. The judgment determined that a Gender Recognition Act certificate did not change legal sex for the purposes of the Equality Act and, therefore, all relevant provisions of that Act which related to single sex exceptions (whether in relation to spaces, services, associations or sport) needed to be based on – and only on – biological sex.
The government asked the EHRC to draft appropriate practical guidance, which it has done. There is a current issue about why the responsible Minister has not laid that draft Code of Practice before Parliament, which has been discussed by LegalFeminist here. But regardless of what that guidance says, the law is clear (guidance cannot change it) and, as the Prime Minister (and other Ministers) have said since April 16, the law (in place for 15 years, it’s worth remembering) must be implemented, as some organisations have already done (including the Labour party itself which has changed its internal rules relating to female only posts to limit these to women, excluding men who choose to identify as women).
Argument
The second question arises from the government’s arguments in the judicial review currently being brought by the Good Law Project (“GLP”) against the EHRC’s interim update. The government is named as an interested party. This is not unusual. It is there to provide clarification on the government’s position and to assist the court.
But that is not what leading counsel for the government is doing. The KC is putting forward arguments which were put before the Supreme Court and rejected. The judge has said in terms to the government’s counsel that the argument is “trying to rewrite FWS”. Government lawyers are putting forward arguments which either show a misunderstanding of the judgment or an attempt to relitigate it or interpret it incorrectly or to water it down or undermine it. Strong words. But why, for instance, is counsel stating that transwomen i.e. men who identify as women should be allowed into a female only space, such as a public toilet, on a case by case basis, when the Supreme Court has already ruled that this is not in line with the law and unworkable. These are not the arguments of a neutral party. They are arguments which the GLP could and are making.
Why is the government doing so? What it is doing is inconsistent with what government Ministers have told Parliament. Who is being misled? Parliament? Or the courts? Both are serious matters.
Responsibility
This brings us to the third question. Lawyers in court act on the client’s instructions. Which part of government is instructing the lawyers to make these arguments? And why? Formally, it is the Minister for Women and Equalities (Ms Bridget Phillipson) who is responsible. She will surely have taken advice from the government’s lawyers, ultimately answerable to the Treasury Solicitor and the Attorney-General. That legal advice is, of course, privileged. But the actual arguments in court are open. They show a government arguing in contradiction to what the Supreme Court judgment says and doing so in a lower court which is bound to follow the Supreme Court’s judgment.
Why? Is this deliberate? Is this a misunderstanding? Is this an attempt to appease those Labour backbenchers who seem unwilling to accept the judgment and who want to water it down in some way? Or is it what might be termed the permafrost layer of management (whether in the civil service or the legal function) who are determined to frustrate the judgment or make it unclear or confusing, either because of their own personal position or ideological views or simply because they do not like it? None of these considerations should play any part in the advice to Ministers or indeed in Ministers’ actions. Are they doing so here?
This topic has been bedevilled by a continuing serious concern: the extent to which government (and other public bodies) have allowed a gross conflict of interest to arise, through their embrace of Stonewall “advice” (Stonewall are not lawyers) and membership of its schemes, and to continue, to the detriment of civil service duties of impartiality and professionalism. These conflicts of interest are a serious breach of the Nolan Principles and have already led to one judgment against the police in Lindsay Smith v The Chief Constable of Northumbria Police in July this year for breaches of its duty of impartiality. LegalFeminist has commented here on the serious conflicts of interest which arise from association with one issue lobby groups such as Stonewall.
Now we have government Ministers saying one thing to Parliament and government lawyers saying something inconsistent to the courts. This is unacceptable. Ministers need to clarify this – and without delay. The public and the courts deserve nothing less.