Sunday 20 February 2022

A dead duck

The law in relation to sex and gender is complex involving interaction between the Gender Recognition Act 2004 and the Equality Act 2010.

But the starting point is easy. s.9 of the 2004 Act provides:-

Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman)

Now, note that here it is not someone's "gender" which becomes that of a woman, it is someone's sex. So when the definition of a woman in the 2010 Act at s.212 as "a female of any age" then that definition clearly includes (former) men in possession of a Gender Recognition Certifcate. 

Back to the 2010 Act and to its protected characteristics they include at s.7 

G  Gender reassignment

(1)A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.

(2)A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.

(3)In relation to the protected characteristic of gender reassignment—

(a)a reference to a person who has a particular protected characteristic is a reference to a transsexual person;


a reference to persons who share a protected characteristic is a reference to transsexual persons.

Now this is to me quite clear. A person with a Gender Recognition Certificate is a woman. So if they seek to access "women only" services and are refused then they are clearly being discriminated against , being possessed of a different  protected characteristic. The exemption for "single sex spaces" under s.26 of the 2010 Act is irrelevant to this because these people are, as a matter of law, women.

I have no great desire to enter the toxic debate around The Gender Recognition Act as, as you will see, that is not my purpose here but, for what it is worth, I have no difficulty with any of this. I am in no personal doubt than transsexual people exist and there is no evidence the 2004 Act itself has been abused so that "men" can access women's spaces,

No, my focus is on the law. Not the law relating to transgender rights, the law relating to the devolved competence of the Scottish Parliament.

At present "a woman" is, as a matter, I restate, of law, someone born a woman or someone possessed of a Gender Recognition Certificate under the 2004 Act. 

But if the Gender Reform (|Scotland) Bill were to become law, "a woman" would become someone born a woman or  someone possessed of a Gender Recognition Certificate under the 2004 Act or  (crucially in this context) someone possessed of such a certificate under the putative future Gender Reform (Scotland) Act 2022. 

Now on any view, for good or ill, that is a change in law to the definition of "a woman".

This is where I get to the point. Last week there was a decision of the Inner House of the Court of Session in the case of For Women Scotland against The Lord Advocate. It decided that The Gender Representation on Public Boards (Scotland) Act 2018 was beyond the competence of the Scottish Parliament. In passing I'd observe that striking down incompetent Holyrood legislation  is by no means the exclusive jurisdiction of the "English" Supreme Court, a point I have made before. The decision had as it's ratio decedendi, a phrase we use daily down Airdrie Sheriff Court,* that in defining a woman as someone who was a woman or lived as a woman, the Scottish Parliament had exceeded its powers, since the definition of a woman was enshrined in the Equality Act and the Equality Act was (by implication) a reserved matter under Schedule 5 of the Scotland Act 1998.

It is a complex and, even for a lawyer, difficult to follow decision but you can cut straight to the chase. The second last paragraph.

"[40] In any event, the definition of woman adopted in the legislation includes those with the protected sex characteristic of women, but only some of those with the protected characteristic of gender reassignment. It qualifies the latter characteristic by protecting only 23 those with that characteristic who are also living as women. The Lord Ordinary stated that the 2018 Act did not redefine “woman” for any other purpose than “to include transgender women as another category” of people who would benefit from the positive measure. Therein lies the rub: “transgender women” is not a category for these purposes; it is not a protected characteristic and for the reasons given, the definition of “woman” adopted in the Act impinges on the nature of protected characteristics which is a reserved matter. Changing the definitions of protected characteristic, even for the purpose of achieving the GRO, is not permitted and in this respect the 2018 Act is outwith legislative competence"

So, if the Gender Recognition Reform (Scotland) Bill seeks to redefine "a woman", as I think it does, then it is beyond the legislative competence of The Scottish Parliament. And since to even introduce it would require the approval of the Law Officers, who must, in terms of paragraph 3(4) of the Ministerial Code sign it off, I suspect we have seen the last of it. If Dorothy Bain thought Lady Dorrian had got For Women Scotland wrong in law she would have been off to the Supreme Court. Noticeably she isn't. 

But don't just take my word for that. The Scottish Government is on the record saying the Bill would be introduced before the end of February, Today they are denying having ever said that. 

* This is my poor attempt at a joke


Sunday 6 February 2022

An appeal to equity.

 Since 31st October 2020, I have been officially semi retired. In fact I have been nothing of the sort.

Partly this was because in the middle of the pandemic there was little to be retired for, particularly during the Winter months when it wasn't very pleasant to go out outside while the restrictions gave little scope for going out inside. But, in addition, when I retired I still had a full caseload which required my full time attention until it was worked off, even as I was only taking on selected new business.

As time has passed however the former issue has eased up, hopefully permanently, while I no longer have enough work to keep me occupied five days a week. So at the beginning of the year I agreed a new working pattern with my my former partners. Unless we had something substantial in court I would not work Mondays or Tuesdays. On a Wednesday I would come into the office to see my residual clients as required and on Thursdays and Fridays, unless I was in court, I would work from home.

This all came into effect last Monday, 31st January. So, the following day Andi and I agreed that we would start behaving as if I was retired and go on a pensioners' expedition. We would go in to Glasgow, have a wee wander around the shops, have a bit of lunch and then see a movie. 

This all transpired but what I write today is inspired particularly by the lunch. It was in a most excellent French Brasserie. We had three courses, wine, water and coffee and were left with a bill of c,£80 before a tip, so it was not particularly cheap but, on a Tuesday lunchtime, it was also really busy. However just about every other person there was a pensioner. Not just couples but mixed groups of diners in varying numbers eating and drinking amidst animated conversation. Having, it appeared, a really good time. And not on an isolated occasion or involving anybody unduly worried about the cost.

What is the point of this minor anecdote? By no means all pensioners are poor. I'm not quite the full bhuna yet but when I am, I certainly won't be. A couple of retired professional people or any number of other final salaried pension recipients are likely to have a joint income, on reaching state pension age, of at least £4000 a month after tax and, if they retired from senior positions, often significantly more. Now, that's a lot more than many working couples are earning. But there's more. Working couples are likely to have significant mortgage costs whereas pensioners will almost certainly have long since paid their mortgages off.. Younger working couples are very likely to have the financial responsibility for children, whereas pensioners children, in the vast majority of cases, will long since have reached the point when they can fend for themselves. Even if pensioners are in a household who expects to have a car, pensioner couples would seldom need two whereas, again, a working couple might, of necessity, require two and be incurring the other travel to work  costs that that very work implies.

Then there are the other benefits. The free bus pass is perhaps the most glaring example but there are numerous other discounts or reduced prices for which the sole qualifying criteria is being a pensioner. Or at least a pensioner prepared to pay a modest joining fee.  Sometimes a  pensioner being defined as having reached the grand old age of 60. Just one example, the annual cost for an adult (admittedly under 65) of non pension age to use the indoor leisure facilities of  North Lanarkshire Council is £374. For someone over 65 it is £50. Now, the full increased minimum wage brings you an income of £17,290 gross. Many pensioners have a higher income than that but even if it is only the same amount they would still have more in their hand because, in another pensioners' perk, while they do pay income tax they do not require to pay National Insurance contributions.

It is that last point which has also prompted this blog. Working people are facing a squeeze on their income through inflation and increased energy prices unprecedented in forty years. But in the very middle of this the Government is proposing to increase National Insurance Contributions. Paid for the purpose of initially providing additional resources for the NHS and subsequently to improve care services. This will cost pensioners not a penny, yet the principal beneficiaries of care services (and, whisper it, in numbers at least, of the NHS) are pensioners! 

Now this is not to argue all pensioners are well off. Far from it. Those surviving on the basic state pension and pension credits are significantly worse off than anybody in full time employment, even allowing for the non existence of housing costs for the former group. But my argument is not that these people should have less, it is that taxation should be based on income, no matter what age is its recipient..

It is difficult to see the reasons against this conclision, on right or left, beyond politics. Pensioners vote in hugely disproportionate numbers so all Parties are apprehensive about incurring their "wrath". Just look at the row over abolishing free TV licenses for the over 75s. But in my view, this move towards greater equity, would not be nearly as toxic for a Tory Government as they fear, not least because it is difficult to see any Labour Government reversing it or even offering to reverse it. But perhaps we could make that offer to the Chancellor now and see how we get on. 

And while we are at it, make him a wider offer on social care costs. It has been obvious for decades that the solution to the cost of social care is a modest flat rate but uncapped Inheritance Tax. When we proposed this in 2010 however the Tories attacked it as a "Death Tax" while, when they did in 2017, our characterisation was a "Dementia Tax".. This will only ever be resolved by a cross party consensus, so let's offer a Royal Commission with a commitment to join the Government in implementing its recommendations. That's in our interests too, for otherwise it will only become a problem that we, one day, in a different way, will inherit. 

I'd happily sit on such a body. I am not without experience in the area and, being semi retired, have some time on my hands.

P.S. The film we saw was "House of Gucci". It was excellent. Oh, and during the trailers there was an advert as to how pensioners might get half price cinema tickets.