Scottish government to challenge Westminster block on GRR

[Janie143]

https://www.bbc.co.uk/news/uk-scotland-scotland-politics-65249431 Good let's get this settled once and for all. Useful side effect to stop Welsh Assembly attempting the same.

Well, it's a crap petition if it says there is no evidence to support the UK Government's claims.

That is because we don't have self ID and thus the impact is, theoretical as a practicality but the issue is one of law. Avoiding the conflict and saying in effect it's a harmless policy because it hasn't actually been implemented and therefore no safeguards are needed (not to agree with self ID but if the Bill had them the Scottish Government would have a better case) is real junior lawyer stuff.

Poor Lord Advocate - submissions probably written for him by the Green Party.

The petition is available on this page
https://www.gov.scot/publications/gender-recognition-reform-section-35-order-challenge-petition/

@Chersfrozenface - this is unlikely to happen. The UK Government will fight it on the basis of the legislation now and its power. To start revising the legislation in the Equality Act as the litigation is on going would perhaps mean half admitting the issue or conceding part of the self ID case is valid. It doesn't have to do that. It could instead spoil any case by Scot Gov by announcing policy moves or prospective policy moves during the case's progress and give comments by Badenoch and the current gossip about Sunak (very socially conservative) then I think this is more likely.

You would have to say something like... "The UK Government refutes the Scottish Government's claim... on the basis of the current legislation as it stands. The UK Government is considering changes to the scope of the legislation".

This might warn the Court of Session off because it would be clear that their ruling could become academic quickly or that this is a political issue where they should not interfere or they make a very short judgment which declares in effect that the UK Gov has the power to do this and it is valid.

Well those submissions are effectively a long whinge and they conspicuously do not make any positive argument in law. It simply asserts that there are public law issues of irrationality and irrelevant consideration and that the Scottish Government did not have effective notice of the issues by UK Gov.

A brave judge would throw it out at first instance. It's barely arguable.

That submission seems at odds with itself. They're seeking a reduction only (?) but based on the highest test (?). I think. Getting a decision deemed irrational is - I always thought - the highest and most difficult bar.

I'd love to see an analysis of this by someone like Legal Feminist or Michael Foran. Presumably one or both will pop up soon.

Does it not state when the informed the UK government? Seems skimmed over on p6. But even that goes against the core argument because if you're saying they should have stepped in (but they didn't), then what you're saying is that they should interfere in what you're arguing is devolved (which it isn't). Seems to me that the UK government did only what it could - wait for the outcome and then decide whether to act.

Foran has just published his thoughts.

www.scottishlegal.com/articles/michael-foran-section-35-showdown-reveals-scottish-governments-peculiar-arguments

Haven't read it yet.