Very interesting.
Key end bit:
“But because the policy has always been unlawful, any such group action can include complaints by individual women of instances in which that unlawful policy was applied to them at any time in the past 20 years when it was in place and enforced. The proposed class action can therefore in principle include all and any women who were imprisonedsince 2006 within the women’s prison estate among (trans identifying) men.
“Conclusion
Litigation is a very blunt instrument. Damages action do no more than attempt to translate or quantify trauma into a sum of money.
“Women who are, or who have been, incarcerated are among the most vulnerable and already traumatised cohort of individuals it is possible to imagine. Most of them have comefrom (and return to) situations of multiple deprivation characterised by, in many cases, chaotic lives marred by often poverty-related chronic and acute ill-health, many with long history of being the victims of, domestic-related (male) violence often associated alcohol and with substance abuse.
“On the basis of the above analysis of the relevant law, the potential liability of the Scottish Government for a class action such as JK Rowling has suggested she might fund is potentially therefore very high indeed. But, of course, it is dependent on finding women who are willing to opt-in to any such class action.
“And the issue then arises as to whether an award of damages assist in making these women’s already hard lives better. But that – as a matter of wider social policy and welfare - raisesquestion beyond the purely legal scope of this paper.”