My thoughts on Women's Prisons

 I have been promising this blog to a small number of my twitter followers for some time. I should apologise for the delay but it has taken some research on my part and, as I go on to narrate, also had a significant development in the last 48 hours.

But before I start properly I need to issue an acknowledgement to. Fishing about for some background knowledge I was put in touch with Dr Kath Murray of the estimable Murray Blackburn McKenzie Partnership who in turn alerted me to two earlier electronic publications of her own, https://t.co/JxJy6Wi4ce https://t.co/I1sLfrbLog They have considerably assisted me in what follows, up to just short of outright plagiarism and it is right I should acknowledge that. 

Let us now start at the very beginning. Women's prisons. 

In the early part of the 19th Century there lived a woman called Elizabeth Fry, who was a formidable campaigner for prison reform. By her efforts, as always assisted by others, she succeeded in promoting and then enacting the Gaols Act of 1823 which provided, among other reforms, that prisons should be sex segregated between men and women. The rationale for this being the sexual exploitation and physical violence women had suffered as a result of being incarcerated with men.  Recognised as long ago as more than 200 years ago and indeed unchallenged for almost all of that period. 

Until, in Scotland at least, 2014. Whereupon the Scottish Prison Service announced that there were to be two sorts of prisons in Scotland. Those, on the one hand, for men and those, on the other for women and for men claiming to be women. But this did not then, nor ever has, accorded with the law of Scotland.

Prisoners are people who have seriously broken the law or. if remanded for trial, believed to have done so. They have, by their own actions, forfeited their right to liberty. But that is all they have forfeited. They are still entitled to be treated with human dignity. That was recognised as long ago as 1823. And again as recently as 2011, when the Prisons and Young Offenders Institutions (Scotland) Rules, came in to force.

Their provisions are quite clear at Rule 126. 

"126(1) Female prisoners should not share the same accommodation as male prisoners"

No qualifications.

Yet in 2014 the Scottish Prison Service consciously decided to ignore this. To ignore the law (for it is and always has been the law). 

Completely captured by Trans campaigners, they announced that in future prisoners would be segregated not as female or male but in the "gender" with which they identified. As opposed to the sex they actually were.

There was no legal justification for this, Even at the height of the controversy of The Gender Recognition Reform Bill, nobody had tried to make instant "self id" the law of Scotland. Yet between 2014 and January 2023 that is the basis on which the Scottish Prison Service operated. A woman was whoever claimed to be a woman, no matter how they looked or what it stated on their birth certificate. So, despite the law, female prisoners would require to share accommodation with male prisoners. Even if the law said they "should not" do so. 

Now, as I'm sure my readers will know, this nonsense all fell apart as a result of the Adam Graham/Isla Bryson case in January 2023. Male offenders were from that point onwards to go to male prisons, no matter how they identified. Up to a point at least. But, even if that should never have been otherwise, that had undoubtedly become the law as declared since March 2022 when the Court of Session determined that, in For Women Scotland v The Scottish Government (No.1) that the Scottish Parliament or Government did not have the power to redefine the meaning of "a woman" in Scots Law. From that point onwards at least the Scottish Prison Service had operated not only in the face of the Prison Rules at face value but also ignoring the unchallenged further decision of the Scottish Courts at our highest level. 

But this is where I come back to my earlier "up to a point". For in December 2023 the Scottish Prison Service came up with its new guidelines. From now on no man convicted of violence towards women or sexual offences more generally can be held in the female estate. "Phew" you might think. Except some men still are! For just this last week we had the court decision at Greenock Sheriff Court whereby one Janey Sutherley was found not proven over an allegation of transphobic abuse of a man, Alan Baker now known as Alex Stewart, within Greenock Prison where, while being a man, Mr Baker is serving a murder sentence. The rationale for Mr Baker being in a woman's prison being that, although he committed a murder, it was only the murder of a man. 

And now we come to my concluding point. Ms Sutherley is herself a convicted murderer. But she did not thus lose her right to be incarcerated with dignity. That has been the law since 1823. In modern terms she has the right to be incarcerated in accordance with Rule 126. Which she hasn't been and isn't being. That will give her remedies. The right to an order that she be incarcerated in a woman only prison and that she be awarded damages for not have being so accommodated in the past. And she will not be alone in seeking this first remedy with other current prisoners or the latter remedy with other female prisoners now released. Several hundred female prisoners I suspect. All entitled to damages. 

And the better news still is that Ms Sutherley has instructed her solicitor to pursue this. Opening, I suspect, a floodgate of similar claims

But, best of all, J.K. Rowling has offered to fund such an action, 

Meanwhile my advice to those responsible for this debacle within the Scottish Prison Service would be to take your pension and get out, 

A waste of Parliament's time.

 To be honest, the Scottish Parliament which I campaigned for and indeed was, for many years, keen to be a member of has been more than a bit of a disappointment. I don't by that mean that the Scottish Government's have been a disappointment. I might think, recently at least, that they have been but that would be a Party partisan point. I mean instead that the Parliament itself as an institution has been a disappointment. For it seems unable to realise when it is wasting its own time.

I give but one historical example although there are others. In May 2015, Sandra White, a SNP backbencher introduced a piece of legislation called the Footway Parking and Double Parking (Scotland) Bill. This was a meretricious measure aimed at penalising footway and double parking. In principle it had cross Party support. The problem was that it was not, then, within the devolved competence of the Scottish Parliament. This was due to an obscure reservation to Westminster of powers over public roadways that was within the terms of the original 1998 Scotland Act. The reservation was removed by the 2016 Scotland Act but patently hadn't been in 2015. Ms. White had overlooked this but the legal advisers to the Presiding Officer had not and in the statement of legislative competence the Presiding Officer was by law obliged to issue in relation to any Bill when introduced, the Presiding Officer pointed this out. Now, you would have thought that would have been the end of the matter. But it wasn't. For the next ten months this ultra vires Bill was considered, including twice with evidence being taken,  by no less than seven committee meetings of the Parliament. all proceeding on the, indisputable anyway, knowledge that the Bill was incompetent. It only finally fell when the Parliament was dissolved in March 2016 for the Scottish General Election of that year.

Now, why am I drawing your attention to this footnote in history? Because in the grand scheme of things and with a much more important and contentious piece of legislation, Liam McArthur's Assisted Dying for Terminally Ill Adults (Scotland) Bill. This Bill is not within the legislative competence of the Scottish Parliament. That is not just my opinion, it is the opinion of The Scottish Government (!) and of Liam McArthur himself (!!). 

In a memorandum sent to the lead committee, The Health Minister wrote on 30th September past in the following terms.

17. In the Scottish Government’s view, the Bill in its current form is outside the legislative competence of the Scottish Parliament. Of particular concern is section 15(8), which gives power to the Scottish Ministers to specify, in regulations, a drug or other substance as an “approved substance” (to be provided to the terminally ill adult to end their own life), and appears to relate to the reserved matter of medicines, medical supplies and poisons (section J4 of schedule 5 of the Scotland Act 1998). 

18. Furthermore, and noting that the Bill represents a novel and fundamental shift in the role of medical practitioners, and the regulatory framework in which they operate, from protecting/enhancing patients’ lives to assisting in termination of life, it is considered that the following provisions in the Bill may relate to the reserved matter of regulation of the health professions (section G2 of schedule 5 of the Scotland Act 1998): • Sections 4(5)(a) and 6(6)(a) of the Bill, which make provision for the Scottish Ministers to specify, in regulations, qualifications and experience of registered medical practitioners who can carry out functions under the Bill. • Section 7(2)(c), which requires a registered medical practitioner, where they have sought a second opinion from another medical practitioner, to take that opinion into account (in carrying out an assessment of a terminally ill adult). • Section 18 of the Bill, which gives a right to conscientious objection.

Now, it is not as if this has passed Mr McArthur by, for the Memorandum goes on to observe

 19. The Bill’s  [own]Policy Memorandum, at paragraph 7 onwards, acknowledges that, in order to have a truly comprehensive assisted dying scheme “something else would likely need to happen”, and makes reference to the possibility of using various Orders under the Scotland Act 1998, such as a section 30 Order. The Scottish Government agrees that further processes would have to be gone through in order to bring the Bill within competence. 

But the crucial point is what follows. 

20. It should be noted that the process for such an Order generally takes 12-18 months and would require the co-operation of the UK Government, as it requires the approval of both Houses at Westminster, as well as the Scottish Parliament, before it is made by His Majesty in Council. This process would need to be completed prior to a vote being taken on the Bill at Stage 3. (my emphasis, for a s.30 cannot be retrospective). 

Now, the process for a s.30 hasn't even formally started. It is unlikely to be an uncontentious one and the issues relating to the regulation of the medical profession, in particular, would throw up wider issues than those relevant to the current legislation so, even if the UK Government are willing to start that process (of which there is no evidence they have even been asked to do) it is difficult to see the process being concluded in less than the minimum period of twelve months the Scottish Government give as the lowest estimate of time a s.30 would take. Given that the current Holyrood Parliament will be dissolved in less than eleven months to allow the 2026 General Election to take place then it becomes patent that this Bill cannot possibly pass. or even be put forward to pass. before that dissolution. If it hasn't then with that dissolution the Bill would fall, At best, post the election, Mr McArthur or another MSP would need to start again if or when a s.30 was ultimately granted. And if the current Leadbetter Bill fails to pass the Commons for England and Wales that would become a pretty big if.  Mr. McArthur must recognise this, but he, and the Parliament, just carry on. 

Now assisted dying is a contentious matter raising hope for some and fear in others but my point is that the current exercise is just a complete waste of time. But nobody in the Scottish Parliament seems willing to point that out.

What is disability?

 We are all sympathetic to the disabled. All of us. right across the political spectrum. And we are all agreed that those who are disabled deserve financial assistance from the state. 

But where we are not agreed is as to what degree of "disability" deserves that support. That is the underlying point regarding the dispute over the welfare reforms. 

If you are not working by reason of ill health you are entitled to additional Employment and Support Allowance over and above that payable to those who are simply not working. And that's probably agreed across the political spectrum as well. 

But then, if you are in that former group, should you be entitled to additional public money by virtue of being "disabled"? And, if so, why? 

Well. if you have a genuine physical disability. you should be left alone with your current entitlement. If you can't walk beyond your front door then you should certainly be entitled to a mobility vehicle. And if your mobility is less, but still limited. you should be entitled to cash to compensate you for the need to be more reliant on taxis than those able to stride to the bus stop. These are the essential conditions for higher or lower awards of the mobility component of PIP (Personal Independence Payments). And quite right too. And you can see why the money is needed.

But the Kendall reforms recognise this, for the mobility element of what is proposed to change is not proposed to change at all. 

All of the proposed changes relate to the second element of PIP, the daily living component. And that is where the problem lies. For, bluntly, far too many people are getting this for unclear reasons. 

Let's start by disposing with the enhanced level of an award here. That involves those chronically ill, in many cases approaching the end of life. And there is no reason they, or at least their carers, should not be entitled to additional support as well.  

Let us instead look at the basic award of care component PIP.  An additional £72.65 a week. Currently, once you have it, essentially for the rest of your life. And, assuming you are not working, paid on top of your Universal Credit with the disability premium to that benefit already attached. So not just that additional £72.65 but an additional £72,65 on top of the £42.50  disability premium you are already receiving and on top of your basic ESA of £90.50, so a total of £205.60 per week. Hardly a king's ransom but when you look at the take home pay of someone earning the minimum wage for a 35 hour week of £339.70 with almost inevitable travel to work costs involved in that work, then .....this is an absurd disincentive to work.  

Nonetheless, who, entitled only as a starting point to £135 a week payment from the state, would not want an additional £72.65? Not me, indeed not anybody. And which General Medical Practitioner would want to challenge the potential claimant's assertion that they are suffering from. self, or at least internet, diagnosed chronic "anxiety and depression", and thus the practitioner be inclined to waste time challenging that diagnosis in the knowledge that the time expended might detract from that involved in dealing with the, potentially genuinely ill, next patient waiting to see them? No. not me either. 

So my solution? Just get rid of the lower rate care component of PIP, at least for those with no other income than that from the state. Or at least, if those entitled under current rules want to claim it, make a successful claim involve forfeiture of their additional disability claim on their ESA. It is, after all, two bites at the same cherry, 

The bottom line is this. There is no thing as public money, There is only taxpayers money. And taxpayers understand who it is they are reasonably expected to support, And to whom. equally importantly. they have no such obligation. Certainly not towards those who have simply opted out from being taxpayers themselves,

The enemy of growth

Preface

I am now an officially retired lawyer, having decided  to give up my practising certificate on 31st October last having spent 44 years in continuous possession of such a certificate. But what you have learned over that period is not erased from your brain. Including how to read and interpret a judicial decisions. In this case that has nonetheless required a great deal of reading. Lord Ericht's decision in Greenpeace runs to 57 pages and the majority's alone in Finch to 106, so reading up on this has taken me some time. You will see the importance of these cases below but I point that out only to explain the delay in my giving my thoughts.

Blog

On Wednesday past, in the Court of Session, in the case of Greenpeace and others v The Advocate General and others, Lord Ericht decided to ban any oil extraction from the Jackdaw and Rosebank offshore oilfields. These  fields had been approved for development by the UK Government on 1st June 2022 and 27th September 2023 respectively and had been approved in accordance with what the law was then understood to be. But it turned out the understanding of the law bearing on that approval was incorrect. Although it didn't become incorrect until 20th June 2024 when the Supreme Court handed down its judgement in the case of Finch v Surrey County Council.

And it is the decision in Finch which is the real problem here.

In Summary, in December 2018 a small oil field developer in Surrey applied to expand their field from 2 wellheads to 6. For this they needed the permission of the County Council, who, in considering the application for permission, were obliged to have regard to the Town and Country Planning (Environmental Impact Assessment) Regulations 2017. Permission was granted on 27th September 2019. On 20th June 2024, nearly five years later, the Supreme Court decided by 3 votes to 2 that this permission had been wrongly granted. This was the first time the decision of September 2019 had been judicially reviewed other than to approve the process of the County Council. The reason for the Council's decision being wrong was  that the environmental impact assessment for the development had considered only the greenhouse gas emissions for the project itself but apparently needed not just to evaluate the greenhouse gas consequence of the development itself but the consequence of the product (oil) that it would produce. The original detailed reasoning of the County Council that this latter issue was unnecessary, based on their interpretation of the relevant legislation, and being well aware of it, was, nearly five years later, in the majority opinion of the Supreme Court, wrong. This was a wholly unjustifiable delay in that being decided. That, ultimately, is my main point here.

So, before we go on to consider the wider consequence of that delay, let's see how it came about. 

Ms Finch's application for Judicial Review was brought on 9th November 2019. It was  first considered by the High Court on a date unavailable but was then refused based on consideration of a written application to be allowed to proceed alone. That then triggered the first hearing in open court again on a date not clear but when the application was again refused. Eventually however, on 15th July 2020, the application was allowed to proceed by the Court of Appeal. By now, nearly ten months after the decision complained of. Although, to be fair, the disruption to court business during the pandemic may have been a a factor here.

Anyway. for now at least, for just about the only time in this case, matters proceed with some expedition. Following sundry procedure, a full hearing is fixed for October 2020, leading to a comprehensively explained decision issued on 21st December 2020  refusing the application for review.. Which decision is then appealed. 

But, then. when is thar appeal considered? As early as in the 4th (of 148) paragraphs of the decision of the judge at first instance, he recognises the significance of his judgement in relation to other planning etc. decisions waiting upon it. But at no point does any higher level of our judiciary seem to acknowledge that importance or the commercial imperatives for the matter to be resolved. 

For the appeal does not proceed to a hearing until November 2021, nearly a year later. Leading to a judgement issued on 17th February 2022, By now nearly 30 months after the original decision complained of . By a majority, I accept, but nonetheless, the decision of the County Council is again upheld by the Court of Appeal. 

But that is not the end of it. For the petitioner is allowed to set off to the Supreme Court. Which, within her rights, she does, But the Supreme Court does not consider the matter at all until JUNE 2023! Some 16 months later. Over a matter which the judge at first instance had recognised instantly as being of much wider importance than the one immediately between the parties directly to it,  

Still, at least we are coming to the end of this? Well, no actually.. For having heard submissions on 21st and 22nd June 2023, the court finally issued its judgement on 20th June 2024! Just a day short of a year later. And by a majority of 3 to 2, after nearly 5 years, finds for the petitioner! The permission granted by Surrey County Council was unlawful and thus so were any other regulatory decisions proceeding from the same "mistake". I'll come back to this in my conclusions, 

For let's move on to the decision then to be made by Lord Erlich. Petitions in respect of the separate applications for judicial review of the decisions to grant in both Jackdaw and Rosebank, premised on the same argument advanced in Finch, were brought timeously and sisted (frozen) pending a decision in Finch. For, although the Statutory Instrument prayed in aid in Finch is different, its wording and indeed source is the same, being terms of an EU directive obliged to be incorporated in domestic law while we were still in the EU.

But, Finch having been decided, the reason for that sist had disappeared, it being accepted that the Government and its nominally decision making quango, had not required an environmental impact assessment beyond that pertaining to the immediate impact of the Jackdaw and Rosebank developments and thus excluding consideration of the possible use of its oil and gas production from these same assessments. So, in light of Finch, these decisions were invalid in law, 

The decision of Lord Erlich, who was obliged to follow the decision of the Supreme Court, would have been easy on that, Except he wasn't even obliged to do that, For the lawyers for all parties: the petitioners, the Government and the potential developers were all agreed on that. Even given its very belated utterances, the Supreme Court had to prevail, The decision to grant approval was wrong, even if it proceeded on the law as understood, and indeed at that point judicially affirmed, was wrong. The only question for his Lordship was remedy. 

And on this he was left with two options. The first was to reduce the certificates issued which allowed the oil fields to proceed as they had not complied with the requirements in relation to an environmental impact assessment, that subsequently decided by the Supreme Court should have been necessary. Alternatively Lord Erlich could have decided simply to issue an order of declarator. Essentially, that it was now clear the permission should not have been granted, but it had been, and, relying on it, the developers had proceeded to spend a very great amount of money and employed large number of people. On that basis the development should be allowed to proceed with a warning to the Government not to make the same "mistake" again. 

His Lordship essentially resolved on the former course of action. So, for the moment at least, no oil or gas can be extracted from either field. 

His Lordship decided at Para 98 of his judgement that he had to balance three main interests.

[98] In the current case there are, broadly speaking, three main interests that require to be balanced. The first is public interest in the Rule of Law and in public authorities acting lawfully. The second is the private interest of members of the public in respect of climate change issues arising out of the Jackdaw and Rosebank projects. The third is the private interest of Shell, Equinor and Ithaca as developers of the Jackdaw and Rosebank projects.

With respect, I am not sure it should have been just these three. For surely the interests of those employed or to be employed in the developments and indeed the wider economic impact in North East Scotland of their cancellation should also have been factors?

But that's not my main point. My main point is his Lordship's first criteria. 

"The [first is] public interest in the Rule of Law and in public authorities acting lawfully." 

This is absolutely correct but that must surely involve a concomitant obligation on those charged with interpreting the law to do so expeditiously? Not taking nearly five years to do so.

Now Lord Erlich is not blind to that delay. The error had caused the developers to expend hundreds of millions of pounds based on certificates believed to have been valid when issued by those responsible for their issue. But his Lordship suggests incurring that expenditure under ongoing legal uncertainty was just a risk the developers had to factor in before proceeding. 

Now, I ask you, is that a regulatory regime that is likely to attract inward investors with a worldwide choice as to where to spend their money?

A sclerotic legal system is a very real enemy of growth. That it is accepted in advance that a third runway at Heathrow will take at least five years to secure planning permission and exhaust all possible legal appeals is an absurdity. If the Government is serious about that same growth then this is where they need to start.