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We return.
(A Mr Mitchell *MM) is speaking and I'm not sure of his position to inform you as yet)
MM: I'm here on behalf of EHRC and they're position is not a conventional Respondent. The commission act in this area of law, a referee, it's not any part of our function.
MM: Albeit we've been seeing repeated comments made by petitioners of doing so. We see this a refereeing decision. The decision, whether sustainable or abandoned is for SG, and if SG did not seek sustain stat guidance, the commission would have nothing to say and its not its
MM: role to set up fights with non existent Opponents. It's regrettable we're seen as partisan it was probably inevitable in this debate. Stepping back from case, it's aroused string passions on all sides. Such is life.
MM: My Lady has our note and first point as to our specific position in this litigation I must make is our sub to this court is fully contained in truth in our note of argument. Which we have sought to draft following what might old fashioned way is proper practice.
MM: Purpose of argument is to state propositions to be advanced. Such a manner the oral argument does not wander unchecked through the garden of possibilities. We are accordingly in a position once heard both sides, we'll stick with that, my lady won't want to hear me read out.
J: if it advances matters yes.
MM: The note of argument is publically available, in partic any observer such as journalists, MSPs can read it. Observation I'll make that this hearing is interesting template in which manner in which open justice proceeds in 2022.
Just as parties can listen they can read arguments before. I've observed a glance up at screen, the way Scottish courts does this, it shows us how many people on line, I've observed 250-500 people watching this. Far more could have in court.
J: unintended but good effect of corvid
MM: clearly room for improvement as this court has trouble muting, but point is its nevertheless frustrating exercise for 100s of people watching this
J: not sure it's 100s
MM: 25 people at any time on screen
J: screens not people
MM: must be frustrating exercise to follow at home without the papers. 1 intervention has usefully set up glorified live tweeting, the LGBA, have only glanced and lady was asked to authorise
J: not sure I was asked to authorise, was authorised for one org but not the one you mentioned, a responsible org
MM: doesn't matter and I've been able to see it, and at first appears to be proper and responsible court reporting but with glitches because tweeter doesn't pick everything up. The broad position is all parties does not and can not properly emerge by listening to what I'm saying.
MM: It emerges much more by reading note of argument in which I stress, this is not court of policy but law. This court is here to say what law is as it stands.
(Missed)
MM: Now with these general comments as to what we're here for today, Commission is here to keep an eye on the law and proposed developments without seeking to make substantive subs as to how should be done. Commision makes policy in other form
J: that's not a rule I could fulfill
MM: court felt necessary to spell it out in first FWS case.
(Missed) Q is Is it lawful or strike it down?
J: me and to clarify, in your own plea and taking contrary position to FWS, should I be reading anything into 'substantiated'
MM: court does not concern itself with these matters. At the heart of dispute, are SG right or wrong...
J: didn't know if it was a caveat...
MM: it really isn't. (Missed) All of these bundles, most is peripheral.
MM: No more to do with the issue of this case than court is to first world war, historical background but that's it. Argument in court is in truth properly restricted. (Missing words due to sound) the public interest in this case is vast and shouldn't be deprecated
J: don't think anyone is doing that
MM: no no...it raises very strong emotions and that shouldn't be criticised. As far as we are concerned
we are a referee, not playing on field, observing.
MM: The core propositions that arise, I don't want to repeat but will stand back from minutea 'what matter with abortion act? Stand back and ask what's the point of these acts in the first place?
MM: Petitioners position on this seems to be that GRA was only put on statute book to deal with very limited set of factual situs, which were the ones happened to be cases gone to court of Human rights. [Discusses employment case]
MM: Looking at 'what is thr point in having GRA?', subs seem to come to this, sorry I'm afraid I'm boring you
J: I'm listening
MM: it's just performative legislation. In truth no designed to affect general state and with enactment of later statutory provisions, EA etc, that it's now become entirely symbolic and then recognising that untenable position,
(missed analogy about child being given a million pounds and MM sound is in and out as he's lowering his voice)
MM: By 2022, this act had nothing more than symbolic effect and no bite on the matters any longer, shouldn't be on statute books. (Missed)
J: it gives the thinking behind it
MM: Hansard report of the debate at 2nd reading, it may not be clear,
J: shall I look at it?
MM: not worth the time. All of this demonstrates Parliament thought they were doing something that mattered and was to respect the privacy of people going through process of GR.
MM: When person applies, they're living in other gender, it's that phrase, can see arguments as to what it is you're looking for, that person when applying is presenting as, use the tag, transgender, TW, I couldn't give a hoot if they're adjectives.
MM: They're presenting as these words. The confusion this has caused, the blurring of these words between touchy feels concept to a hard question.
MM: The first FWS unsuccessful attempt by SG to give rights and status of woman to class of people who had no cert and were in wider sense TG and TW. Term TG has never been examined
J; been examined to me
MM: I didn't wish to be interrupted at this point by other members.
MM: Expressly stated this point, we noticed EN picked up on it. We asked agents for a petition and they gave reply and said without prejudice that we've never had access and too late to have anecdotal evidence
J: no evidence at all
MM: (missed) very very small group of people, a few hundred in Scotland who have TG status, they are only group affected directly by this. Others may be indirectly. Looking at that group is a Q of their privacy.
MM: What I think is being said by petitioners is not that the Act has been repealed but that section 9 has. Odd way to do drafting. Modern drafting doesn't proceed in this manner. 3 fund propositions, section 3 could not be clearer, well I'm sure it could be, but clear enough.
MM: If a acquired gender is a man then acquired sex is a man. No such thing as legal speed limit, just speed limit. Emphasis on legal sex is to repeatedly draw attention that it's a matter of law.
MM: this is a workable continuing statutory framework. When looking at stat provision would be to say 'is this a provision?'
MM: Hard fact is EA does not have that. It has words but leaves to reader to say 'does that mean a woman as per how you were born or by subsection 1, the woman you you have become. Status changes through life.
MM: What it does is like a marriage or divorce certificate. Marriage cert records my status has changed so does equally the divorce cert.
MM: Best historical analogy is when Westminster first made provision for divorce, Scotland divorce had been recognised on back on analysis going back to Martin Luther.
England had rested with law stated and went into 1857 as a matter if law with provision for.
MM: The bishops split and was said 'beyond powers of parliament' that man and woman no longer married. Its the same as we have here. If I'm a Catholic, of course I may well say I'm not divorced, as a matter of law I'm legally forced.
MM: And here is matter of law that sex has become that of a man. I appreciate strong views. Language cannot be gotten away from. Does section 9.1 mean what it says or not? We then see the provision to the contrary. (Missed)
MM: And so on with all these provisions, some have been changed, the explanatory notes are useful to explain what law was in 2004. [Reads exceptions 'for purposes of employment to be treated as acquired gender/opposite sex]
MM: It's a watershed moment when you have your GRC, that bites in real life not like monopoly money.
What's the point in having EA? To make certain forms of discrim unlawful. To codify the provisions for sex, race, GR, bring them together in one act.
MM: Some of the argument the petitioners use, are somehow by accident and unnoticed, the law has changed, based on GRC. That's a chapter better gone on to after lunch.
J: we have 2 days and am keen everyone gets opp.
(Someone asking but can't hear them, have learned it is AN)
AN: if there's an attempt to draw out his submissions and go over 4pm so I can't respond I will be disappointed. Custom practice is to allow for time reply. I have number of points.
AN: The idea Mr Mitchell is possibly attempting to keep his sub going is frankly an abuse of process and I wrong be happy with that strategy. I've managed to complete mine and I thought we'd be having equal time specially as EHRC aren't a participant.
MM: won't get into accusation, if he wishes to complain he can do so. I'm not stringing out matters, would've thought its obvious I'm going as fast as I can. No desire to stand on my hind legs here.
J: there you go AN, he says he's not. I understand very clearly where you're all coming from. I will do fairness and justice to all parties and if right of reply needed we'll address that then
[Adjourned for lunch, 2pm return]