English Supreme Court Rules – OK

In the blink of an eye, in court judgement terms, the Supreme Court has ruled that Scotland is not a country, or at least, not a country that can make its own decisions without help from Mother England. They’ve ruled that Scotland is a colony controlled by the English parliament, who are the ultimate authority and have the power to deny Scots the ability to even think about the form of government they want.

Unionists will be pleased. Yet another blow to Scot’s belief in themselves. Yet another victory for those who want us all to think Scots are the lowest of the low. And yet another excuse for delay that was surely the only reason why Sturgeon sent a unionist Lord Advocate to the Supreme Court to destroy the Scottish case.

This was a case that was supposed to take months to come to a decision on, because of the volume and the complexity of the written evidence before the judges. No decision before next year was the expectation. The early date for the announcement leant credence to the view that there would be no decision, that they would say that a decision couldn’t be made because the Scottish Parliament hadn’t yet approved a referendum bill. That was my belief and that of many others.

Instead, what we got was a decision based solely on the judges’ understanding that Westminster is boss, that whatever Westminster says, goes.

There was no time to look at the evidence before them, so the evidence was ignored. The judges simply said that we aren’t going to waste our time thinking about what Scots want to do. We’ll just tell them to get back their box, learn their place and stop pretending they can think for themselves. We’ll just tell them that they can only make decisions that are permitted to them by English parliamentarians.

A judgement that was supposed to be made under Scot’s law said that Scot’s law is merely a subset of English law and when push comes to shove, English law is all that counts. A panel of five, including one Scottish judge, effectively ruled that Scot’s law doesn’t exist.

So where does that leave us now? What legal means exist for Scots to decide on the form of government we want? Now that a referendum has been ruled out (giving Nicola Sturgeon’s government another year to think about what they’ll do), what’s next? Is it the plebiscite in 2024? Or will Sturgeon ask the Supreme Court to rule on whether a plebiscite is within the competence of the Scottish Government? I wouldn’t rule that out.

If we don’t take Scot’s law into our own hands, nothing will ever happen. Let’s remember the Declaration of Arbroath. Let’s use the Claim of Right. Let’s do something before being Scottish becomes nothing but a folk memory.


Many Facebook sites are increasingly censoring bloggers like myself who are sometimes critical of the actions of the SNP and the Scottish Government. They are attempting to prevent bloggers from getting their message out, so we have to depend on readers sharing the blog posts. If you liked this post or others I have written, please share this and take out a free subscription by clicking the follow button on the home page or on the posts. You will then be notified by email of any new posts on the blog. Thank you.

Is it all just a dream?

Imagine the following post summarising the current state of the Scottish independence debate.

There’s an independence referendum coming. Obviously, with less than a year to go, the Scottish Government’s campaign is in full swing. There have been marches through the streets of major Scottish towns and cities, SNP MPs and MSPs at their head, spreading the word, making sure everyone in Scotland knows about the benefits of independence.

The biggest march, so far, has been in Glasgow, with Nicola Sturgeon leading over quarter of a million independence supporters to a rally in Glasgow Green. An even bigger march and rally is planned for Edinburgh, with close to half a million expected on the Meadows to witness the widely rumoured reconciliation between Alex Salmond and Nicola Sturgeon, setting aside their differences to work together for independence.

The independence bloggers have all got a new lease of life. Stuart Campbell has unretired Wings over Scotland and has nothing but praise for the actions of the Scottish Government. Many blogs, even including my own poor efforts, are showing a ten-fold increase in traffic, driven by the availability of two independence supporting video channels now being broadcast into every home in Scotland and being watched by millions.

Even the mainstream media are finding it impossible to ignore what’s going on, especially following the decision of Scottish Labour Party members to demand separation from the UK Labour party so Scottish Labour can become a truly Scottish based party. The Scottish Liberal Democrats are soon expected to follow suit. The numbers involved in independence events are so large that the mainstream media, even including BBC Scotland, are forced to report (almost) truthfully on what’s happening, even showing glimpses of the hundreds of onlookers stepping off the pavement to join the marchers. Unionist supporting organisations are finding it hard to get a platform because very few want to listen to what they have to say and they have no evidence to back up their increasingly deranged utterings.

How many of you have been swept up by the colour and noise and excitement of the events? How many of you have now been converted to be strong independence supporters when the true facts were put to you by the Government. Were you a No and are you now a Yes? Will you now be voting for independence? The campaign is being and will be a success. There is no longer any doubt that independence is the settled will of the Scottish people. Scotland will return to being an independent country next year.

But …

Is this true or is it all a figment of my imagination? Is it just wishful thinking on my part? Is it all a dream? Unfortunately, it turns out I’ve woken up to the real nightmare, the real nightmare where nothing described above is happening and where the ‘party of independence’ has leaders who are actively trying to prevent independence. This is the nightmare when the people in whom you put your trust turn out to be no better than those you knew would do everything they could to stop you from succeeding. This is present day Scotland.

However, to end on a lighter note, here’s a few words that Abba could have written to cheer you up and help you through these dark times.

I Have a Dream, a fantasy
To help me through, reality
And my destination, makes it worth the while
Pushin’ through the darkness, it’s just another mile

I believe in Indy
Something good in everything I see
I believe in Indy
When I know the time is right for me
I’ll cross the stream, I Have a Dream

Don’t give up. Keep the faith, folks.

Nicola Sturgeon – super independence negotiator?

There’s been lots of talk recently (and not just from me) about whether Nicola Sturgeon and elected SNP MPs and MSPs. still have independence as their number one priority or even if it’s on their priority list at all. Unfortunately, recent events have not made this clearer. Despite Sturgeon announcing the date for a second independence referendum on 28th June this year, little if any campaigning has happened, though I have been informed by SNP members who still speak to me that there have been three leaflets available to be delivered, though I can’t find much information about them on either the Scottish Government website or the SNP website, suggesting they may be information already in the public domain being recycled.

At the recent SNP conference, with just 12 months to go before the referendum is due, there were no debates on independence and no motions on the activities planned. It was almost as if the SNP has no intention of taking part in their own referendum.

There’s little comparison between current SNP inactivity and what was happening in September 2013, a year before the first independence referendum. Then, the campaign was gearing up, most Yes (and other) groups had been formed and many conversations and meetings were being held. I even got a “Yes volunteers briefing pack” from Shirley-Anne Somerville, produced before her conversion to deputy assistant Wokemeister. Now, the SNP won’t even discuss an independence strategy at their conference, though they are happy to discuss an unnecessary code of conduct, apparently designed to exclude any group who doesn’t share their views on gender and women with willies.

Of course, there is the (in)famous Building a New Scotland series of papers, promised by Sturgeon to provide all the information Scots need to allow them to make an informed choice about independence. The papers, not sure how many are planned, will be available in 17 different languages (not Scots, obviously). The first two, Independence in the modern world, issued in May, and Renewing Democracy through Independence, issued in June, were roundly criticised for containing no indication how the Government intended to achieve the objectives set out in the papers. But surely, the third, A stronger economy with independence, which was issued last week, was the icing on Sturgeon’s devolution cake. Criticised for its continued adherence to the Growth Commission’s idea of retaining sterling for an indefinite period (who would want to stick with sterling after the last few weeks) and its lack of detail as to how the benefits will be achieved (again), it doesn’t inspire confidence in the SNP’s desire for independence. Indeed, Richard Murphy, who supports Scottish independence, in his review of the document, was driven to say, “I doubt the conviction of those who wrote it about independence” and who can blame him. Read his full statement here in a Twitter thread.

Now let’s think of what happens next if, despite Sturgeon’s best efforts, Scotland achieves independence. With Sturgeon still in position as First Minister, she would lead the negotiations with Westminster to determine the terms under which Scotland would leave the United Kingdom. Obviously, Sturgeon would be determined to get the best deal possible for Scotland, wouldn’t she. Or would she?

Let’s look at some recent examples of her interest in the future of Scotland and the success of Scottish independence.

First, the ScotWind auction.

For years, the SNP have been promoting offshore wind generation as a jewel in Scotland’s resource crown, one of the reasons why an independent Scotland would be so successful. Why then did the ScotWind auction earlier this year place a cap on the maximum amount companies were allowed to bid? What sensible organisation running an auction would decide that no matter how high buyers were prepared to bid, no matter how much companies thought it was worth, a limit would be placed on the amount the seller was prepared to accept. In this case, the maximum bid was set at £100,000 per sq.km., hence the total of £700m raised from an area of 7000 sq.km.

The £100,000 price was a last-minute decision to increase the cap from £10,000 per sq.km. following bids for an 8GW (Gigawatts) area in England raising £875m per annum using a different auction method. To put it another way, given that the areas auctioned would allow the installation of at least 25 GW of wind power, the ScotWind auction represents a price of no more than £28m per Gigawatt.

Was that a fair price? How does it compare with other similar auctions? Coincidentally, at almost the same time as the ScotWind auction, the US government held an auction for areas just off the coast of New York and New Jersey. This was for a much smaller area than the ScotWind auction, supporting only 7 Gigawatts of wind power, but it raised a total of $4.37bn. Converting to Sterling, this represents a price of £530m per Gigawatt, 19 times the ScotWind price. Had ScotWind raised a figure similar to the US auction, the Scottish Government would have received a £13bn boost, or around 40% of their annual budget.

The cap not only prevented the Scottish Government getting a potentially enormous one-off bonus, but the auction rules mean they get only a tiny annual fee, there’s no government involvement in the on-going development and no real guarantee of local benefit from the projects, in either supplies or jobs.

Why was the auction deliberately set up to minimise the advantage to Scotland and the Scottish people? Was this the action of a party determined to deliver a successful independence?

Now the island ferries.

Much has been written about the island ferry fiasco, so I won’t repeat the details here. Those who want to find out more need only look at Iain Lawson’s blog, Yours for Scotland to see statements from Professor Alf Baird and Dr. Stuart Ballantyne, among others, who know much more about ferries than I do (or the Scottish Government do, apparently).

What has always puzzled me is why the Scottish Government have persisted with support for the current ferry replacement policy, led by CMAL (Caledonian Maritime Assets Limited), a public company wholly owned by the Scottish Government, when that policy has clearly failed. So much is currently wrong, complex, one-of orders; high cost; often incapable of using existing island facilities; leading to slow delivery of replacement vessels and resulting in an aging fleet, prone to breakdown and providing a poor service to island communities.

There are better ways. The Clyde Catamaran Group have submitted proposals for the replacement of the CalMac fleet with low cost, internationally proven designs, which would lead to a modern, responsive fleet, saving both build and operational costs, while providing a much improved service to the island communities, a service that would allow the islands to prosper. It is nothing short of unbelievable that these proposals have hardly been considered by the Scottish Government/CMAL, often without even the courtesy of a reply to communications from the group.

What reason can the Scottish Government have for ignoring the obvious advantages contained in the proposals. Is it stupidity, is it a determination not to admit that mistakes have been made, is it corruption as has been suggested by some, or is it a deliberate act to ruin another aspect of Scottish life. The last option sounds unbelievable until combined with other Scottish Government behaviour, as described above and below.

Finally, there’s this.

The release of the third paper in the Building a New Scotland series. I’ve already mention above the almost unbelievable plan to retain Sterling for an indefinite period. However, that’s not the worst of it. Sturgeon states that although there’s no legal responsibility for iScotland to accept any UK debt, she thinks we have a moral obligation to help out Westminster with their debt problem. Setting aside the stupidity of alerting your opponent to your thinking in advance of any negotiations, why would we want to take a share of debt that was mainly accrued to benefit England, especially in the circumstances where the English government have been ripping us off for centuries. If anything, our stance should be that we are owed multi-billion pound reparations for all we have lost by being part of this union.

Accepting a share of UK debt without significant concessions from the other side (which is unlikely to happen) will damage Scotland and has the potential to make independence less successful. Why would any independence leader suggest such an action?

Scorched earth policy?

These are just three examples of the SNP and the Scottish Government making decisions which appears harmful to Scottish independence, but there are many others, such as the divisive GRA amendment policy and the inaction of SNP MPs in Westminster, both of which impact on the possibility of Scotland regaining her independence and make it more difficult for independence to be a success.

Much has been said about Sturgeon’s alleged interest in securing a UN or EU post after resigning from her current position as First Minister of Scotland, but the events described above point towards her last gift to Scotland, before leaving, being the implementation of a “scorched earth policy”, doing her best to disadvantage the Scottish people and make independence seem less attractive.

Is there another explanation? Recent statements from Sturgeon and senior colleagues seem to confirm a continuing involvement of the SNP at Westminster following the next UK general election, currently scheduled for 2024, which, considering the current SNP plan to hold an independence referendum a year from now, would suggest either an expectation of defeat or certain knowledge that the referendum will not take place.

Let’s look at some of these statements.

Ian Blackford tells BBC News that at the next UK election, the SNP will have a growth plan for the UK. Why? Will we not be negotiating independence by then? See the clip here (courtesy of WoS). Meanwhile, his boss was telling us she was looking forward to working with Rishi Sunak and that we also need an immediate UK General Election to get rid of the anti-Scottish Tories and replace them with anti-Scottish Labour.

How do you build a “constructive working relationship” with someone you want to leave and are campaigning against? Perhaps because there won’t be any campaigning?

In the meantime, let’s hang around doing nothing. What else could I do?

And call for a general election, which you won’t get and, in any case, it’s only to give the SNP three extra years on the Westminster gravy train.

And if that’s not enough, here’s Tommy Shepherd worrying about English residents. Pity he doesn’t spend time worrying about Scottish residents suffering from colonialism. Still, I suppose the extra £15k for making such statements makes it seem ok.

Do these comments sound like they come from people who want independence above all else? Do these comments sound like they come from people who you would want to be negotiating the future of an iScotland? If not, what are SNP politicians for?

Yestival – 18th September 2022

Hope Over Fear

“Free in 2023” YESTIVAL Rally

Hope Over Fear will be holding its annual Rally in George Square on Sunday 18th September 2022. This year’s YESTIVAL is being held on the 8th anniversary of the 2014 Referendum on Independence.

The theme of the YESTIVAL is #FreeIn23 and is sponsored and supported by 43 Yes organisations with high profile speakers from across the independence movement, including from numerous political parties (see attached Poster).

A number of musicians will also perform on the day, including the internationally recognised and celebrated Scottish singer / song writer Sandi Thom.

Tommy Sheridan, Hope Over Fear, said: “We are delighted to announce that Sandi Thom will perform at this year’s YESTIVAL. She is a class act with a string of hits to her name and a passion for music and Scotland’s independence.

“She will join a fantastic line up of other independence supporting performers who will entertain the Indy Family on such a special day. We will assemble in our thousands to mark eight years exactly since our first referendum and declare our absolute commitment to IndyRef2 which has been set for 19th October 2023.

“No unelected judges or unrepresentative Tories are going to stop Scotland claiming her democratic right to vote on our future”.

John Park, Hope Over Fear, said: “In the past 8 years, things have got worse for the people of Scotland, not better. The Tories’ austerity agenda has caused more suffering for ordinary people – poverty has increased; benefits have been slashed; pensions cut; Public Services reduced or abolished; and now we are all suffering from the cost of living crisis, or cost of greed! At the same time, the rich continue to get richer!

“The Unionists keep telling us that now is not the time for another referendum on Scottish Independence, but the people of Scotland cannot wait any longer.

“We must break the chains from the complete shambles that is Westminster, where Scotland’s voice is continuously ignored. So I say to Unionists – NOW IS EXACTLY THE TIME!

***ENDS***

FOR FURTHER INFORMATION CONTACT:

Tommy Sheridan      Hope Over Fear                     Mobile:           07881 771954

John Park                Hope Over Fear                     Mobile:           07929 974237

NOTES

Hope Over Fear is a grassroots independence campaign responsible for organising hundreds of pro-independence rallies and meetings throughout Scotland.

Since October 2014, when over 15,000 attended the Still YES Rally after the 18th September referendum, which YES narrowly lost and rising star Gerry Cinnamon performed his first big hit Hope Over Fear, the organisation has returned to Glasgow’s George Square every September, near to the historically important date of 18th September, to declare the on-going commitment to a new and better independent Scotland free from Westminster rule.

·         The YESTIVAL will take place in George Square on Sunday 18th September 2022 from 12pm to 5pm.

·         Photos of Sandi Thom are attached.

·         A Biog of Sandi Thom is below

Sandie Thom Biog

Having spent a significant time in the Middle East doing humanitarian work with street dogs and cats, Sandi Thom has been off the radar for several years. However, having now permanently relocated back to the UK, Sandi is back and better than ever.

I’ve grown so much in the past 4 years that I’ve been on the road” Thom says. “My experiences have really shaped me and been amazing inspiration for my latest songs”.

With over 50 million Spotify streams, the Scottish singer’s popularity continues to grow organically. “I’m always so humbled at how my songs just seem to continue to connect with people” she says. One song in particular; November Rain, taken from Thom’s album of Acoustic Classic Rock covers, has seen a growth spurt.

I couldn’t believe the number of streams on you tube when it hit 12 million, I never expected it to be so popular, but it just seems to connect with so many people, it’s amazing

2022 and beyond is going to be an amazing time for me. I am so excited to be hitting the road again with the band, playing live, getting back in the studio and just immersing myself in the industry again. I’m also really excited at the prospect of taking on challenging roles in theatre, it will be a whole new world for me and something I can really get my teeth into artistically” the mum of 6-year-old Logan says.

With her continued organic growth in popularity Thom says she’s so excited about getting stuck back into her career and can’t wait to release the hotly anticipated 7th studio album entitled “Wanderlust” along with an autobiography detailing her life’s story so far. Both the album and the book are set for release in the winter of 2022

It’s been 16 years since her first single “I wish I was a punk rocker” shot to no.1 in 7 different countries and since then Thom has continued to make albums that are eclectic, different and timeless. Now get set for the most exciting release of her career,

My new album Wanderlust is going to blow Punk rocker out of the water” Thom states.

 “Exquisite” The Times

**** Classic Rock magazine

Unique pop-folk” The Herald

Fierce & Honest songwriting” The Huffington post

Internet Sensation” BBC

Pugnacious and Sharp” The Irish Times

Diverse and Consistently Impressive” American Songwriter

Social media pages:

www.youtube.com/sandithom 50,700 subscribers

www.spotify.com/sandithom 463,300 monthly listeners 50 million + streams worldwide

www.twitter.com/sandi_thom 15,100 followers

www.instagram.com/sandithom 52,200 followers

www.facebook/com/sandithom 34,000 followers

Many Facebook sites are increasingly censoring bloggers like myself who are sometimes critical of the actions of the SNP and the Scottish Government. They are attempting to prevent bloggers from getting their message out, so we have to depend on readers sharing the blog posts. If you liked this post or others I have written, please share this and take out a free subscription by clicking the follow button on the home page or on the posts. You will then be notified by email of any new posts on the blog. Thank you.

Can there now be any doubt?

As most regular readers will know, I’m not a great fan of the current SNP and especially not a fan of Nicola Sturgeon, current party leader and First Minister. In my view, nothing the SNP have done over the last eight years under Sturgeon’s leadership has brought us one step closer to independence.

In fact, it’s worse than that. Mandates have come and gone, opportunities have come and gone, but still no progress towards what is supposed to be the party’s raison d’etre, the very reason why they were formed almost ninety years ago. Progress has been so slow that the cynical amongst you might be tempted to believe that the lack of progress is a deliberate choice on the part of Nicola Sturgeon; that she is only interested in extending the length of time she remains in power and, to that end, preventing Scotland escaping from this one-sided union.

It has certainly been my view for some time now, but two recent events have, I think, put this view beyond doubt.

The offshore wind ripoff

First was the sale of the off-shore wind energy licences for a tiny fraction of their true worth. For years, the SNP have been talking up Scotland’s enormous potential for renewable energy generation, through wind, wave and hydro, and how that could represent a huge benefit for an independent Scotland, money for the government and jobs for Scottish workers. That, of course, could only be true if the Scottish Government was careful about the way in which licences to develop these resources were granted. Licences would have to be auctioned in a way that would produce the greatest benefit to Scotland, both in terms of getting the highest price possible combined with a guarantee for the involvement of Scottish manufacturing and development resources.

Why then did the ScotWind auction earlier this year place a cap on the maximum amount companies were allowed to bid? What sensible organisation running an auction would decide that no matter how high buyers were prepared to bid, a limit would be placed on the amount the seller was prepared to accept. In this case, the maximum bid was set at £100,000 per sq.km., hence the total of £700m raised from a area of 7000 sq.km. To put it another way, given that the areas auctioned would allow the installation of 25 GW (Gigawatts) of wind power, this represents a price of £28m per Gigawatt.

Was that a fair price? How does it compare with other auctions? Coincidentally, at almost the same time as the ScotWind auction, the US government held an auction for areas just off the coast of New York and New Jersey. This was for a much smaller area than the ScotWind auction, supporting only 7 Gigawatts of wind power, but it raised a total of $4.37bn. Converting to Sterling, this represents a price of £530m per Gigawatt, 19 times the ScotWind price.

What could be the reason for such a difference? Is US energy worth so much more than Scottish energy? Well, let’s look at the average retail price. In the US, the average price is around 9p per kilowatt/hr whereas in the UK, the average price is currently about 28p per kilowatt/hr, but that is expected to rise to 51p per kilowatt/hr in October.

So why did ScotWind place such a tiny limit on the selling price of a resource worth 5 times what it’s worth in the States? Two possible reasons are they were incompetent or it was deliberate. However, one action which goes against the possibility of incompetence, just not knowing the true worth, was a last minute decision to increase the cap on bids from £10,000 per sq.km. to £100,000 per sq.km., so given that they seemed to realise the asking price was far too low, you can assume there was some understanding of the value of what they were selling. You know what reason that leaves.

But that’s not the only bad news. Included in the contract with the buyers is that they will be charged an ongoing annual rent, expected to raise between £50m and £90m for the Scottish Government. Remember the ‘good old days’ when in 2017, Nicola Sturgeon announced at conference that the Scottish Government would create a not-for-profit energy company to sell energy to households in Scotland for “as close to cost price as possible”. Was it really ever likely to happen or was it just announced as a soundbite for the media and for the conference standing ovation. Anyway, it was cancelled last year, coincidentally just before the auction. Had that gone ahead and had a Scottish energy company been responsible for the ownership and selling of the wind power, this would have brought the Scottish Government the full value of the resource, estimated to yield between £3.5bn and £5.5bn annually. Instead, this money is all going to major energy companies, with only crumbs for the Scottish Government and for Scotland.

Mob rule in Perth?

The second event was the SNP’s reaction to recent happenings at the Tory hustings in Perth, the only hustings to be held in Scotland. An anti-Tory demonstration was talked about and, on the day, many hundreds turned up from different groups to protest about Tory government actions and policies. There was a substantial police presence and the protesters were placed behind barriers, somewhat distant from those who turned up to hear the two candidates. Many in the crowd made their feelings known, some using strong language, but there was no violence and nobody was arrested.

Despite that, several Tories who attended the event, and many other unionists who didn’t, described the crowd as consisting of evil nationalist, independence supporting idiots and put messages on social media accusing the evil nationalists of grabbing and spitting at pensioners, all impossible because of the distance between the crowd and the attendees and because of the large number of police, who would have surely taken action had such things happened. So they were just lying. One incident widely discussed was when James Cook, a BBC reporter (not a journalist) approached the crowd and was shouted at by a guy wearing sunglasses and a skipped cap pulled down over his head, not looking in the least suspicious. Apparently, what the guy said what so awful that it threatened the whole concept of freedom of the press and free speech (not the guy’s, obviously) and almost reduced Cook to tears, though whether it was tears of horror, tears of joy or tears of shame was not revealed.

Of course, the gutter press (is that all of them?) picked up on this and, very quickly, the event took on the appearance of an out of control mob of Scots separatists threatening the safety and wellbeing of a group of innocent, mainly elderly Tories going about their lawful business of listening to their potential leaders describing new ways of ripping off Scotland.

That the media printed (and broadcast) such rubbish is pretty much to be expected, but less expected was the reaction of SNP politicians, though perhaps it shouldn’t be. SNP policy now seems to be placate unionists at all cost, no matter how many independence supporters are harmed in the process. Without even a moment’s thought, taking Tory statements as gospel and certainly not taking time to find out for themselves, SNP politicians jumped in with both feet, only too anxious to blame the crowd.

First up was David Linden, apparently only too happy to believe every word from Andrew Bowie, describing what he believed to be independence supporters as morons. Does he really believe tbat independence will be gained by being nice to the Tories?

He was followed by a host of other SNP politicians, including Sturgeon and Swinney, only too happy to blame independence supporters for everything that happened, even though no evidence exists. To be fair, those two were more concerned about Cook than Tories, unlike John Nicholson and Pete Wishart, who just knew it was all Alba’s fault. I wonder why the SNP are so really keen to keep in with the media? Could they be worried about something the media could make public?

So why are the SNP so anxious to demonise independence supporters and other independence supporting groups? Why are the SNP so anxious to keep in with the Tories and the media? Why are the SNP so anxious to split the independence movement? Will these actions bring independence closer?

My view

These two events have served to crystallized my long held opinion that the SNP are no longer the party of independence. Under Sturgeon, the party has morphed into a self-centered group of individuals more interested in their own prosperity than the country’s.

Are they so besotted by the power and the money that they’ll do anything to keep them, no matter who suffers? Has the party been so infiltrated by biology deniers that the leadership are frightened to face up to them? Or has this always been Sturgeon’s cunning plan to become the UN’s World Biology Denying Representative, gathering more money, status and power for herself and for the person she married.

Who knows, apart from the dynamic duo themselves?

What I do know is we have a party in government that is doing everything it can to stop Scots achieving independence and, unfortunately, a change at the top, whether by resignation or sacking, will only bring up the next biology denier in line, meaning no change in policy. After 80 years of working to gain independence, the SNP have completely changed in the 8 years of Sturgeon’s leadership and there seems no way back.


Many Facebook sites are increasingly censoring bloggers like myself who can be critical of the actions of the SNP and the Scottish Government. They are attempting to prevent bloggers from getting their message out, so we have to depend on readers sharing the blog posts. If you liked this post or others I have written, please share this and take out a free subscription by clicking the follow button on the home page or on the posts. You will then be notified by email of any new posts on the blog. Thank you.

Equality Act and schools

This another extract from the Attorney General’s speech about what is lawful and what is unlawful in relation to the provision of education and facilities in schools. In the speech, she makes reference to English law, School Premises (England) Regulations 2012, though similar regulations apply in Scotland, School Premises (General Requirements and Standards) (Scotland) Regulations 1967 with minor changes made in 1973 and 1979. Current regulations stipulate that separate facilities should be available for both boys and girls.

The Scottish Government are in the process of updating the regulations. They issued a consultation document which didn’t get many responses, but significantly, did support private facilities for girls. It is anticipated that changed regulations will apply only to new schools or those which have had major renovation.

What follows is a definition of what is legal under the Equality Act. It shows clearly that much of what the Scottish Government proposes to do will be illegal under the Equality Act, which is probably what they have already been told by their own legal team.


The challenge is particularly acute in schools and for those whose professional responsibilities are to child welfare. Obviously school staff are highly motivated to do their best for children. To do this, they need to understand their legal obligations, understand the evidence about how best to support gender questioning children and know how to make a best interest decision for each and every child under their care.

The problem is that many schools and teachers believe – incorrectly – that they are under an absolute legal obligation to treat children who are gender questioning  according to their preference, in all ways and all respects, from preferred pronouns to use of facilities and competing in sports. All this is sometimes taking place without informing their parents or taking into account the impact on other children. Anyone who questions such an approach is accused of transphobia. In my view, this approach is not supported by the law.

For the sake of clarity, I will set out my view on the legal position under the Equality Act. By way of preliminary note, under 18s are unable to obtain a Gender Recognition Certificate and schools will generally be dealing with children whose sex for the purposes of the Equality Act is that registered at birth.  As used by Dr Hilary Cass in her interim report, I use the terms trans-boy to mean a biological female who identifies as a male and trans-girl to mean a biological male who identifies as a female. I use both as shorthand to include all those claiming protection under the characteristic of ‘gender reassignment’, as referred to under the Equality Act. Taking each issue in turn:

  • Yes, it is lawful for a single sex school to refuse to admit a child of the opposite biological sex who identifies as transgender. This can be a blanket policy to maintain the school as single sex. This does not constitute unlawful direct discrimination on grounds of sex under schedule 11 nor does it constitute unlawful indirect discrimination on grounds of gender reassignment. This is clearly a proportionate means of achieving a legitimate aim.
  • Yes, it is lawful for a mixed school to refuse to allow a biologically and legally male child, who identifies as a trans-girl, from using the girls’ toilets. This does not constitute direct sex discrimination and is not unlawful indirect discrimination on grounds of gender reassignment. Indeed, if the school did allow a trans-girl to use the girl’s toilets this might be unlawful indirect discrimination against the female children. Further, in law, there is a duty to provide separate single sex toilets, a breach of which would be unlawful under the School premises (England) Regulations 2012 and the Education (Independent School Standards) Regulations 2014.
  • Similarly, yes, it is lawful for a mixed school to refuse a biologically and legally male child who identifies as a trans girl from using a single sex girls’ dormitory. This is neither direct sex discrimination or unlawful indirect discrimination on grounds of gender reassignment. Sufficient comparable accommodation must be provided to both girls and boys. Protecting girls’ privacy, dignity and safety are eminently legitimate aims.
  • Yes, it can be lawful for schools to refuse to use the preferred opposite-sex pronouns of a This does not necessarily constitute direct discrimination on grounds of sex, particularly if unsupported by the child’s parents or by medical advice. Nor is it necessarily indirect discrimination on grounds of gender reassignment where a school has considered and can justify the approach. As set out in the interim Cass report, this is ‘social transitioning’ and is not a neutral act. It is a serious intervention and should only be done upon the advice of an independent medical practitioner. Furthermore, schools and teachers who socially transition a child without the knowledge or consent of parents or without medical advice increase their exposure to a negligence claim for breach of their duty of care to that child.
  • Yes, it can be lawful for a school to refuse to allow a biologically male child, who identifies as a trans girl, to wear a girls’ uniform. This will be a significant part of social transition and the inherent risks of that could present an ample legitimate aim. Therefore, this does not necessarily constitute unlawful direct sex discrimination nor is it likely to constitute unlawful indirect discrimination on grounds of gender reassignment. Court of Appeal authority permits different dress codes for male and female employees and no rational distinction can be made for school uniforms.
  • Yes, it is lawful for a school to refuse a biologically and legally male child who identifies as a trans-girl from participating in girls’ single sex sporting activities. This does not constitute unlawful direct sex discrimination nor is it unlawful indirect discrimination on grounds of gender reassignment. This single sex exception is based on the average performance of male and female participants.
  • And lastly, yes parents have a right under the Freedom of Information Act 2000 to request access to teaching materials used in their children’s state funded schools. They could also make an internal complaint followed by referral to the Department for Education and ultimately via judicial review. But parents do have the right to know what is being taught to their children.

It is therefore wrong for schools to suggest that they have legal obligations which mean that they must address children by their preferred pronouns, names, or admit them to opposite sex toilets, sport teams, or dormitories. A right not to suffer discrimination on grounds of gender reassignment is not the same thing as a right of access to facilities provided for the opposite sex. The exceptions in Schedule 3 and 11 create a mechanism whose sole purpose is to ensure that even though there is a general prohibition of sex discrimination, schools are legally permitted to take a single sex approach. This is supported by the case law. Parliament could not have plausibly intended for these specific exceptions to be subject to collateral challenge by way of complaints of indirect discrimination by other protected groups such as those with reassigned gender. This would be to risk the Equality Act giving with one hand, and promptly taking away with the other.

Schools should consider each request for social transition on its specific circumstances, and individually, and any decision to accept and reinforce a child’s declared transgender status should only be taken after all safeguarding processes have been followed, medical advice obtained and a full risk assessment conducted, including taking into account the impact on other children. I hope that understanding the law will free up schools to act in each and every child’s best interest rather than being driven by a generic misunderstanding of legal duties.

This legal view is supported by the emerging evidence. As the interim Cass Report points out, ‘it is important to acknowledge that it is not a neutral act’ to socially transition a child and there are different views on the benefits versus the harms and ‘better information is needed about the outcomes’. Given – I quote – the ‘lack of agreement, and in the many instances the lack of open discussion’ among clinicians there are very real legal dangers of schools ‘socially transitioning’ children in this way. Since the interim Cass report, schools must be sensitive to the fact that gender distress may be a response to a range of developmental, social and psychological factors- that something else may be going on. The fact that there has been an enormous increase in the number of cases, in addition to a complete ‘change in the case-mix’ of those with gender distress within the last decade, from predominantly boys presenting in early childhood to teenage girls with no prior history, the fact that ‘approximately one third… have autism or other types of neurodiversity’ and ‘there is over-representation’ of looked-after children, should illustrate the complexity of what schools are dealing with. Schools have a duty of care in relation to the health, safety and welfare of their children and they risk breaching this duty when they encourage and facilitate a child’s social transition as a blanket policy; or take the decision to do so without medical advice. Given the emerging nature of the evidence and the fact that even clinical professionals find it challenging to know whether transition is the right path for a child, it is not reasonable or fair for teachers to have to make this onerous decision alone. This is a decision that can have lifelong and profound consequences for the child.

This is particularly so when the child is harmed as a consequence, especially if social transition were to lead subsequently to binding, or medical or surgical procedures, and even more so if done without the knowledge or consent of the child’s parents.

To emphasise again, before going ahead with social transition, schools should get the best multi-disciplinary team around the table – including clinical professionals – and parents. In children’s healthcare the legal presumption is that parents act in the best interests of their children, until and unless there are strong grounds to suggest otherwise. There is no other situation where a school would make a significant life changing decision about a child without involving the parents – these children should not be treated any differently.

I understand that my comments may make those experiencing gender distress anxious, particularly when they may be waiting to access support from the NHS. More needs to be done to ensure that children do receive that support in a timely fashion, and more generally that being gender non-conforming is accepted and supported. Stereotypes of what it means to be a boy or girl can be challenged. But it is important that we take a prudent approach, particularly as we await the full Cass report.


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Equality Act and single sex spaces

This is the part of Suella Braverman’s referring to the Equality Act and how the law protects single sex spaces. The Equality Act applies to the whole of the UK, including Scotland, so any proposed change to the law which has an adverse impact on the Act would be ruled out on that basis.


Cases that have arisen under the Equality Act 2010 are yet another ‘vivid illustration of how aspirational legislation can so easily be blown off course’. This point was made by Lord Faulks QC in his foreword to Paul Yowell’s excellent Policy Exchange paper on the Act. The Act represents a codification of the UK’s anti-discrimination law – some 116 prior Acts and Regulations. In part prompted by European Union law, the Act gold-plates and goes further than what the EU required in some areas. The aim of the Act was no doubt laudable, but its interpretation sits uncomfortably with our Human rights tradition. Its interpretation by various sectors is causing huge confusion for those attempting to decipher the correct balance of competing rights and protected characteristics. To be clear, I do not advocate repealing or scrapping the Equality Act. I am concerned about incorrect interpretation of its provisions.

This particularly applies to how we, as a society, support those people who claim protection of ‘gender reassignment’ whilst at the same time supporting those who seek protection of rights defined by biological sex. Both public and private bodies are struggling to understand their obligations. My aim today is to provide clarity on the law.

For the purposes of Gender Recognition Certificates, we do not operate a system of self-identification in England and Wales. But some service providers behave as if they have a legal duty to admit biological males who identify as females into women-only spaces, from rape crisis centres and domestic abuse refuges to bathrooms and changing rooms. In my view this is not in accordance with the law.

The law supports the position adopted by my colleagues Nadine Dorries as Culture Secretary and Nadhim Zahawi when in post as Education Secretary. Paragraphs 26 and 27 of schedule 3 of the Equality Act are clear. They permit direct discrimination on grounds of sex: they permit “women only” and “men only” services, provided that the rule is a proportionate means of achieving a legitimate aim.

In law, single sex services are intended for one sex only: that is the very thing permitted by schedule 3. It follows that it is not possible to admit a biological male to a single-sex service for women without destroying its intrinsic nature as such: once there are XY chromosome adults using it, however they define themselves personally, it becomes mixed-sex. The existence of a Gender Recognition Certificate can create a legal position but cannot change biological reality. The operation of the Equality Act is such that the permission to discriminate on grounds of gender reassignment is permission to discriminate against someone who may be the ’right’ biological sex for a particular activity but has the protected characteristic of gender reassignment.

By way of example a ‘women-only’ rule for a women’s judo class excludes all men and will be lawful under paragraph 26 if a joint service would be less effective, and it is a proportionate means of achieving a legitimate aim. It will no doubt put people with the protected characteristic of gender reassignment (e.g. trans-women, by that I mean a biological male who identifies as a female) at a disadvantage compared to those without that characteristic. But in my view if the benefit that it confers is sufficient to justify direct discrimination against the whole class of men, it will in almost all circumstances be sufficient to justify indirect discrimination against a much smaller class of trans-women.

This interpretation is in fact supported by the explanatory notes to the Equality Act. Those notes give an example of a group counselling service for female victims of sexual assault. In that case, it is clear that an individual with the protected characteristic of gender reassignment (e.g. a trans-woman) could be lawfully excluded, if organisers believed that otherwise, women would be unlikely to attend the session. This position has also been upheld by recent guidance from the Equality and Human Rights Commission as well as case law such as the Elias case in the Court of Appeal, approved in Homer in the Supreme Court.

So if one group incurs a modest particular disadvantage and another group incurs a more serious particular disadvantage, justification for exclusion can be lawfully established.


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Women only spaces – the legal view

What follows is a speech by Suella Braverman, the UK Attorney General, laying out the legal position of single sex spaces and services and, in particular, the admittance of biological males into women only spaces and services.

In her opinion, where it can be shown that there is a reasonable benefit to be gained from the provision of such services, they should be restricted to members of that sex. Specifically, even if in possession of a gender recognition certificate, biological males should not be permitted to enter or use women only spaces and services.

The Equality Act of 2010 applies to Scotland as well as the rest of the UK , so this opinion seems to drive a coach and horses through the Scottish Government’s plan to update the GRA to permit self-id and trans women being permitted to enter women only spaces.

Attached is a transcript of her speech.


Transcript

Good afternoon,

I feel very honoured to have been invited here today by Policy Exchange’s Judicial Power Project. The Judicial Power Project focuses on the proper scope of judicial power within our constitution and highlights how and by whom public power is exercised.  It’s so influential, and so often mentioned in Parliament, both on the left and right. At times it seems that it is the only public defender of constitutional orthodoxy – but scratch beneath the surface of the legal Twitterati, you’ll find that there is a lot of support for their clear, Diceyan view of our constitution. I want to put on record my thanks to Prof Richard Ekins, Lord Godson and all of the academics and big brains at Policy Exchange for your thought leadership.

My speech today is about equality and rights, and I’ve titled it, ‘conflict and the need for clarity’. Despite what our critics might say, rights can be difficult to get right. Sometimes, things that seem clear in the abstract become distorted when they are applied in the real world, with unintended consequences. That’s when we need clarity. How do we balance the rights of minorities with the rights of majorities? Or the rights of different minorities against one and other? Rights are presented by the left as an inevitable march of progress towards ultimate liberation. But as Conservatives we reject this quasi-religious narrative. We know humans are flawed and changeable and there will never be a perfect framework that solves everything. We also know that tolerance for difference, for robust debate, can sometimes be more appropriate than restricting freedom.

It’s so tempting to see things superficially.

But all rights, however noble, impose limits and obligations on other people, some with tricky trade-offs.

Should protesters have the right to block the streets? Or block ambulances? How far does a state’s duty to protect its citizens extend vis a vis a foreign national offender’s human right to remain here? Should women have the right to single-sex spaces? Do our feelings about who we are, change the rights to which we are entitled?

There is a now serious risk that the fight for rights undermines democracy and harms the very people for whom the fight was intended to benefit. In the context of a mature democracy – with a responsive and pragmatic common law tradition – is it always right that minority groups impose their claims upon the rest of society? We need to make sure that the costs of protecting rights are worth the pay-off.

The judicially expanded European Convention on Human Rights and New Labour’s Human Rights Act marked a radical change in ‘how’ fundamental rights are protected in the UK, with alarming constitutional and practical consequences. We now have a ‘rights culture’ in a way that did not exist prior to 1998. Aspects of this are causing confusion and distress. In my view, many of the difficult cases we have seen, have been symptomatic of this long tail of Blairism.  Sometimes – but not always – we see a triumph of common sense, fairness and freedom of speech. Increasingly we see cases arising in the workplace that are symptomatic of a culture where fringe campaign groups, purporting to champion rights, have claimed a moral high ground and have adopted an attitude of intolerance. No doubt right-wingers and left-wingers will disagree on the precise causes of how we got to a place where stating the facts of biology might risk your job. In relation to the Equality Act, the main problem is that businesses and institutions are currently misinterpreting these laws and applying a perceived moral obligation to go beyond the law, when it comes to equality.

The magnitude of the departure from a Parliament-led to a Court-led development of Human Rights law is visible when viewed against our distinct constitutional and political history. The Conservative party’s track record on human rights law demonstrates a better understanding of this British human rights edifice, and the importance of incremental changes, coupled with the primacy of parliamentary sovereignty. New Labour’s Human Rights Act, which borrowed heavily from continental understandings of rights protection, was a significant change in our legal tradition. This stark contrast is still visible today, as the Government embarks on the first-ever reform of the Human Rights Act. The Deputy Prime Minister / Lord Chancellor has introduced a new UK Bill of Rights in Parliament, a further step towards ‘taking back control’ which I welcome. His work in strengthening our UK tradition of freedom whilst injecting a healthy dose of common sense into the system. This Conservative Government needs to enact this legislation as soon as possible.

I will raise three areas where the conflict of rights has played out unsatisfactorily: first, the use of the judicially expanded European Convention on Human Rights to obstruct the Government’s action on illegal migration, secondly the use of human rights and its legal test of ‘proportionality’ as a defence to criminal damage charges and third the gold-plating of the protected characteristic of gender reassignment in the context of single sex spaces.

Despite the debates around these issues, I believe the Government has a duty to confront all of this with intellectual honesty and courage – so that clarity might bring compassion rather than conflict.

  1. The Tradition of British Human Rights

Conservatism contends that human rights are “inherited” as opposed to “natural”, and tradition is the tool to ground the abstract in the concrete.

This philosophy is encapsulated in the most fundamental principle of our Constitution: Parliamentary Sovereignty. It is a principle of constitutional law and political fact, which intwined with democracy, allows the British people to fully and directly participate in their own government.

Lord Hoffmann, in ex parte Simms, explains the extent of this Sovereignty for the purposes of statutory construction he said: “Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. […] The constraints upon it exercised by Parliament are ultimately political, not legal. The principle of legality means that Parliament must squarely confront what it is doing and accept the political cost.’

Or Lord Bingham in Jackson v Attorney General: ‘The bedrock of the British constitution is, and in 1911 was, the supremacy of the Crown in Parliament…Then, as now, the Crown in Parliament was unconstrained by any entrenched or codified constitution. It could make or unmake any law it wishes. Statutes, formally enacted as Acts of Parliament, properly interpreted, enjoyed the highest legal authority.’

Parliament’s voice, through legislation, is the final word. This may appear stark but the fact that this “rights inheritance” is protected by a “moral and political responsibility” that is not legally enforceable does not diminish its importance.

The British Constitution was always a combination of legal and political elements, premised on the awareness that individual liberty could not be protected exclusively through legal devices.

We have a rich heritage of rights in the UK. Though we’ve sometimes fallen short, the belief in equality has been persistent enough in our culture that we’ve always had loud voices calling on us to mend our ways, like in the case of slavery. We now have a large body of rights for people who work in factories, building sites, drive HGVs and work nights. We’ve passed anti-discrimination laws when it comes to disability and sex. We now, rightly, have a right to compassionate leave, paternity leave, maternity leave and shared parental leave.

Conservative values lie at the heart of the centuries‐long development of human rights in the UK. For instance, on women’s rights, in 1928 under a Conservative government Parliament gave women the right to vote. Between two world wars, it ratified international human rights treaties protecting women and children. The Conservatives promoted same sex marriage. Over the years, Conservative administrations have pushed through several human rights statutes such as the Police and Criminal Evidence Act 1984 (promoting rights to liberty and to a fair trial) and the Children Act 1989. The Protection of Freedoms Act 2012 and the Defamation Act 2013 were promoted by Conservatives to protect privacy and freedom of expression. What these Conservative human rights achievements have in common is the leading role of Parliament in setting the scope of protection of these rights.

Further, let’s not forget that it was Sir Winston Churchill who made the embedding of human rights a war aim, achieved by the founding of the United Nations and its Universal Declaration of Human Rights. In substance, though, both the UN declaration and the Convention did little more than summarise the rights already enjoyed by British citizens in 1950 under UK law. This is why, for almost 40 years, something like the Human Rights Act was not considered necessary. For Britons, rights were recognised by the Convention, not created by it.

But when it comes to equalities, there is now very little consideration of the costs of affording more and more rights to particular groups, of the negative impact on wider society or how personal responsibilities should define our roles in society.

  1. Equality, Diversity and Inclusion

The new sector called Equality, Diversity and Inclusion is a by-product the rights culture born out of the Convention and the Human Rights Act, combined with misinterpretations of the Equality Act.

Often with vastly inflated salaries and armed with a Newspeak dictionary, they have created mighty citadels of grievance across the public sector and made huge inroads into the private sector.

Equality laws have been misconstrued and weaponised to fight those who challenge their views as perpetrators of hate speech, calling for them to be swiftly no platformed or cancelled.  The are now many concerning examples of how inclusion has trumped fairness.

Added to the mix is Critical Theory. Anti-Western pseudo-scientists have spawned a new category in which our characteristics form a hierarchy of oppression. If you are black, if you are gay, if you have a disability, if you are a woman, you apparently automatically face some form of oppression, regardless of any evidence and regardless of any anti-discriminatory rules within your institution.

We are told that our unconscious bias means we discriminate against these people without thinking. Asking for evidence of this has become proof of your status as oppressor; or your failure in allyship.

I have been dismayed by the expense and resource spent on such Equality and Diversity Training within the civil service. When I investigated this recently I was disappointed to discover that civil servants spent thousands of hours of their taxpayer-funded time last year attending lectures on unconscious bias training, on ‘micro-incivilities’, different ‘lived experiences’ in ‘oppressive systems’, and ‘how to be a straight ally’, courtesy of Stonewall. They are referred to so-called experts on white privilege. They are told that if an ethnic-minority person says that something is offensive, then it is offensive and they don’t have a right to question it. This is despite a January 2020 ministerial directive that unconscious bias training would be phased out in departments.

This kind of thinking does nothing to create solidarity and encourage support but rather keeps emphasising difference, creates a sense of ‘otherness’ and pits different groups against each other. It is tearing up the fabric of our society.

And aside from how divisive it is, how the voters in my constituency of Fareham would consider this to be value for taxpayers’ money is beyond me.

All of this finds its roots in the legal and political turn that was taken in the incorporation of the Convention, through the Human Rights Act and misinterpretations of the Equality Act. They marked a breakaway from the distinct constitutional and human rights tradition of Britain founded in parliamentary sovereignty and democratic oversight.

I’ll focus now on three areas where there are problems.

3.1 Convention Rights and Illegal Migration

In the late 1970s the European Court of Human Rights in Strasbourg introduced the so-called “living instrument” doctrine and began to interpret the Convention in ways that cannot be squared with the intentions of the signatories.

The doctrine hides the uncertainties of human rights behind the claimed certainties of judicial decision making.

In his Reith Lecture, Lord Sumption – the former UK Supreme Court Judge – masterfully explained the crisis of legitimacy generated by the Strasbourg Court. He observed that by interpreting the Convention as a living-instrument, the Strasbourg Court recognises rights which states did not intend to grant, and which are not within the Convention’s original object and purpose. This is contrary to legally binding norms of treaty interpretation. This is why Lord Sumption describes the Convention as a “dynamic treaty”. In his words, the result is “to transfer an essentially legislative power to an international body standing outside the constitutional framework of the United Kingdom.”

This hampers legal certainty, which requires a sensible and intention-led construction of legal texts. The rule of law and democracy are also undermined by the Strasbourg Court deciding matters of policy that should be determined by the democratically elected branch of government – i.e. Parliament.

These issues are heightened as the Strasbourg bench of judges is composed by justices from continental legal systems. They are used to operating without a formal doctrine of binding precedent. This means that their habit is to force the ‘right’ result in the case – even if that means straining the law – with less of a focus on how that case will influence future cases. When coupled with the living instrument doctrine, the Convention has rapidly and unpredictably expanded. As Lord Hoffmann has said, this has meant that the Convention is given meanings ‘which could not possibly have been intended by its subscribers’.

Stark examples of the real-world impact of the living instrument doctrine include the expansion of Article 8, the right for respect of private and family life. The Convention originally conceived this right as guarding against arbitrary Government intervention in family life – like house searches by the police – as a direct reaction to authoritarianism. However, this right has been radically extended today.

Take the case of a Nigerian national – called OO by the court – who was sentenced in 2016 to four years in prison for offences including possessing crack cocaine and heroin with the intention to supply, and then pleaded guilty in 2017 to battery and assault. Serious offences. In 2020, the First-tier Tribunal allowed his appeal against deportation on grounds that OO’s ‘very significant obstacles’ to integration in Nigeria outweighed the public interest in his deportation, despite the serious nature of his offending, and deportation was irreconcilable with Article 8 (the right to respect for private and family life). The Upper Tribunal upheld that decision on appeal.

Similarly, Article 3 which prohibits torture has been radically expanded to impose wide-ranging positive obligations on the State. This, despite having no bearing to the objective meaning of torture, inhumane or degrading treatment as originally envisaged in the Convention. In D v UK, a case of a non-national convicted drug dealer, the Strasbourg Court held that the effect of discontinuing his medical treatment available in the UK but not available in his destination country, amounted to inhuman or degrading treatment under Article 3.

After a series of contradictory decisions by the Strasbourg Court, more procedural burdens were created by our Supreme Court in AM (Zimbabwe) v Home Secretary in 2020. States wishing to remove someone must now prove that the medical facilities available to the deportee in their destination country would remove any real risk that their lifespan would be shortened by removal from NHS facilities.  When someone is being deported from a developed to a developing country this will often be the case. This places increased burden on our national resources and extends the concept of ‘fundamental rights’ beyond what was originally intended.

In short, the Strasbourg Court has operated to thwart aspects of our domestic policy making in relation to illegal migration. This conclusion that is aptly demonstrated by the authoritative study for Policy Exchange by John Finnis QC and Simon Murray, and strongly endorsed by Lord Hoffmann.

3.2 Human Rights Act, Criminal Law and Rights to Protest

The problems generated by judicial policy-making in Strasbourg do not solely sit at an international level. When the Human Rights Act came into force, domestic courts were empowered to oversee rights protection and stand in judgement over decisions made by Parliament and government about how best to act. At the time, extensive efforts were put in to training judges in this new rights framework and how it should be interpreted.

This created a direct avenue for Strasbourg interpretive methods to pervade British judicial reasoning. The intensive standard of proportionality under the Human Rights Act – in contrast to British test of Wednesbury unreasonableness – has proven problematic. A clear example is in relation to its use enabling Convention rights as defences to criminal damage charges.

In the Ziegler case, the UK Supreme Court set aside several protestors’ convictions for wilfully obstructing a highway. It held that in light of Articles 10 (freedom of expression) and 11 (freedom of assembly and association) of the Convention, protestors can claim a ‘lawful excuse’ for deliberate physically obstructive conduct even where it prevents other users from exercising their rights to pass along the highway. In the Colston statue case, the trial judge directed the jury that, before they could convict for criminal damage, the jury must be sure that doing so would be a ‘proportionate interference’ – in other words compatible – with the defendants’ exercise of their human rights. The legal uncertainty that these cases illustrate prompted me to refer questions of law to the Court of Appeal. The questions concern the proper scope of defences to criminal charges arising from protests, and the directions which should be given to juries in such cases. My referral will not overturn the acquittals in this case but the backlash that I have received for merely referring this question – on a point of law! –  demonstrates how politicised and inflamed many of these issues have become precisely because they have been removed from the political arena and placed in unattackable court rooms. There was at least one other voice of reason in this media storm, which was the Policy Exchange paper by Charles Wide QC, who made it very clear that there was a compelling case for referral. We await judgment and clarity from the Court of Appeal.

This Government’s reforms to the Human Rights Act will bring welcome predictability to these imported and vague Human Rights standards. They will prevent trivial human rights claims from wasting judges’ time and wasting taxpayer’s money by introducing a permission stage in court, requiring claimants to show they have suffered a significant disadvantage before their claim can go ahead. They will also reinforce in law the principle that responsibilities to society are as important as personal rights by ensuring courts consider a claimant’s relevant conduct, like criminal behaviour, when awarding damages.

  • Equality Act and Single Sex Spaces

Cases that have arisen under the Equality Act 2010 are yet another ‘vivid illustration of how aspirational legislation can so easily be blown off course’. This point was made by Lord Faulks QC in his foreword to Paul Yowell’s excellent Policy Exchange paper on the Act. The Act represents a codification of the UK’s anti-discrimination law – some 116 prior Acts and Regulations. In part prompted by European Union law, the Act gold-plates and goes further than what the EU required in some areas. The aim of the Act was no doubt laudable, but its interpretation sits uncomfortably with our Human rights tradition. Its interpretation by various sectors is causing huge confusion for those attempting to decipher the correct balance of competing rights and protected characteristics. To be clear, I do not advocate repealing or scrapping the Equality Act. I am concerned about incorrect interpretation of its provisions.

This particularly applies to how we, as a society, support those people who claim protection of ‘gender reassignment’ whilst at the same time supporting those who seek protection of rights defined by biological sex. Both public and private bodies are struggling to understand their obligations. My aim today is to provide clarity on the law.

For the purposes of Gender Recognition Certificates, we do not operate a system of self-identification in England and Wales. But some service providers behave as if they have a legal duty to admit biological males who identify as females into women-only spaces, from rape crisis centres and domestic abuse refuges to bathrooms and changing rooms. In my view this is not in accordance with the law.

The law supports the position adopted by my colleagues Nadine Dorries as Culture Secretary and Nadhim Zahawi when in post as Education Secretary. Paragraphs 26 and 27 of schedule 3 of the Equality Act are clear. They permit direct discrimination on grounds of sex: they permit “women only” and “men only” services, provided that the rule is a proportionate means of achieving a legitimate aim.

In law, single sex services are intended for one sex only: that is the very thing permitted by schedule 3. It follows that it is not possible to admit a biological male to a single-sex service for women without destroying its intrinsic nature as such: once there are XY chromosome adults using it, however they define themselves personally, it becomes mixed-sex. The existence of a Gender Recognition Certificate can create a legal position but cannot change biological reality. The operation of the Equality Act is such that the permission to discriminate on grounds of gender reassignment is permission to discriminate against someone who may be the ’right’ biological sex for a particular activity but has the protected characteristic of gender reassignment.

By way of example a ‘women-only’ rule for a women’s judo class excludes all men and will be lawful under paragraph 26 if a joint service would be less effective, and it is a proportionate means of achieving a legitimate aim. It will no doubt put people with the protected characteristic of gender reassignment (e.g. trans-women, by that I mean a biological male who identifies as a female) at a disadvantage compared to those without that characteristic. But in my view if the benefit that it confers is sufficient to justify direct discrimination against the whole class of men, it will in almost all circumstances be sufficient to justify indirect discrimination against a much smaller class of trans-women.

This interpretation is in fact supported by the explanatory notes to the Equality Act. Those notes give an example of a group counselling service for female victims of sexual assault. In that case, it is clear that an individual with the protected characteristic of gender reassignment (e.g. a trans-woman) could be lawfully excluded, if organisers believed that otherwise, women would be unlikely to attend the session. This position has also been upheld by recent guidance from the Equality and Human Rights Commission as well as case law such as the Elias case in the Court of Appeal, approved in Homer in the Supreme Court.

So if one group incurs a modest particular disadvantage and another group incurs a more serious particular disadvantage, justification for exclusion can be lawfully established.

Schools

The challenge is particularly acute in schools and for those whose professional responsibilities are to child welfare. Obviously school staff are highly motivated to do their best for children. To do this, they need to understand their legal obligations, understand the evidence about how best to support gender questioning children and know how to make a best interest decision for each and every child under their care.

The problem is that many schools and teachers believe – incorrectly – that they are under an absolute legal obligation to treat children who are gender questioning  according to their preference, in all ways and all respects, from preferred pronouns to use of facilities and competing in sports. All this is sometimes taking place without informing their parents or taking into account the impact on other children. Anyone who questions such an approach is accused of transphobia. In my view, this approach is not supported by the law.

For the sake of clarity, I will set out my view on the legal position under the Equality Act. By way of preliminary note, under 18s are unable to obtain a Gender Recognition Certificate and schools will generally be dealing with children whose sex for the purposes of the Equality Act is that registered at birth.  As used by Dr Hilary Cass in her interim report, I use the terms trans-boy to mean a biological female who identifies as a male and trans-girl to mean a biological male who identifies as a female. I use both as shorthand to include all those claiming protection under the characteristic of ‘gender reassignment’, as referred to under the Equality Act. Taking each issue in turn:

  • Yes, it is lawful for a single sex school to refuse to admit a child of the opposite biological sex who identifies as transgender. This can be a blanket policy to maintain the school as single sex. This does not constitute unlawful direct discrimination on grounds of sex under schedule 11 nor does it constitute unlawful indirect discrimination on grounds of gender reassignment. This is clearly a proportionate means of achieving a legitimate aim.
  • Yes, it is lawful for a mixed school to refuse to allow a biologically and legally male child, who identifies as a trans-girl, from using the girls’ toilets. This does not constitute direct sex discrimination and is not unlawful indirect discrimination on grounds of gender reassignment. Indeed, if the school did allow a trans-girl to use the girl’s toilets this might be unlawful indirect discrimination against the female children. Further, in law, there is a duty to provide separate single sex toilets, a breach of which would be unlawful under the School premises (England) Regulations 2012 and the Education (Independent School Standards) Regulations 2014.
  • Similarly, yes, it is lawful for a mixed school to refuse a biologically and legally male child who identifies as a trans girl from using a single sex girls’ dormitory. This is neither direct sex discrimination or unlawful indirect discrimination on grounds of gender reassignment. Sufficient comparable accommodation must be provided to both girls and boys. Protecting girls’ privacy, dignity and safety are eminently legitimate aims.
  • Yes, it can be lawful for schools to refuse to use the preferred opposite-sex pronouns of a This does not necessarily constitute direct discrimination on grounds of sex, particularly if unsupported by the child’s parents or by medical advice. Nor is it necessarily indirect discrimination on grounds of gender reassignment where a school has considered and can justify the approach. As set out in the interim Cass report, this is ‘social transitioning’ and is not a neutral act. It is a serious intervention and should only be done upon the advice of an independent medical practitioner. Furthermore, schools and teachers who socially transition a child without the knowledge or consent of parents or without medical advice increase their exposure to a negligence claim for breach of their duty of care to that child.
  • Yes, it can be lawful for a school to refuse to allow a biologically male child, who identifies as a trans girl, to wear a girls’ uniform. This will be a significant part of social transition and the inherent risks of that could present an ample legitimate aim. Therefore, this does not necessarily constitute unlawful direct sex discrimination nor is it likely to constitute unlawful indirect discrimination on grounds of gender reassignment. Court of Appeal authority permits different dress codes for male and female employees and no rational distinction can be made for school uniforms.
  • Yes, it is lawful for a school to refuse a biologically and legally male child who identifies as a trans-girl from participating in girls’ single sex sporting activities. This does not constitute unlawful direct sex discrimination nor is it unlawful indirect discrimination on grounds of gender reassignment. This single sex exception is based on the average performance of male and female participants.
  • And lastly, yes parents have a right under the Freedom of Information Act 2000 to request access to teaching materials used in their children’s state funded schools. They could also make an internal complaint followed by referral to the Department for Education and ultimately via judicial review. But parents do have the right to know what is being taught to their children.

It is therefore wrong for schools to suggest that they have legal obligations which mean that they must address children by their preferred pronouns, names, or admit them to opposite sex toilets, sport teams, or dormitories. A right not to suffer discrimination on grounds of gender reassignment is not the same thing as a right of access to facilities provided for the opposite sex. The exceptions in Schedule 3 and 11 create a mechanism whose sole purpose is to ensure that even though there is a general prohibition of sex discrimination, schools are legally permitted to take a single sex approach. This is supported by the case law. Parliament could not have plausibly intended for these specific exceptions to be subject to collateral challenge by way of complaints of indirect discrimination by other protected groups such as those with reassigned gender. This would be to risk the Equality Act giving with one hand, and promptly taking away with the other.

Schools should consider each request for social transition on its specific circumstances, and individually, and any decision to accept and reinforce a child’s declared transgender status should only be taken after all safeguarding processes have been followed, medical advice obtained and a full risk assessment conducted, including taking into account the impact on other children. I hope that understanding the law will free up schools to act in each and every child’s best interest rather than being driven by a generic misunderstanding of legal duties.

This legal view is supported by the emerging evidence. As the interim Cass Report points out, ‘it is important to acknowledge that it is not a neutral act’ to socially transition a child and there are different views on the benefits versus the harms and ‘better information is needed about the outcomes’. Given – I quote – the ‘lack of agreement, and in the many instances the lack of open discussion’ among clinicians there are very real legal dangers of schools ‘socially transitioning’ children in this way. Since the interim Cass report, schools must be sensitive to the fact that gender distress may be a response to a range of developmental, social and psychological factors- that something else may be going on. The fact that there has been an enormous increase in the number of cases, in addition to a complete ‘change in the case-mix’ of those with gender distress within the last decade, from predominantly boys presenting in early childhood to teenage girls with no prior history, the fact that ‘approximately one third… have autism or other types of neurodiversity’ and ‘there is over-representation’ of looked-after children, should illustrate the complexity of what schools are dealing with. Schools have a duty of care in relation to the health, safety and welfare of their children and they risk breaching this duty when they encourage and facilitate a child’s social transition as a blanket policy; or take the decision to do so without medical advice. Given the emerging nature of the evidence and the fact that even clinical professionals find it challenging to know whether transition is the right path for a child, it is not reasonable or fair for teachers to have to make this onerous decision alone. This is a decision that can have lifelong and profound consequences for the child.

This is particularly so when the child is harmed as a consequence, especially if social transition were to lead subsequently to binding, or medical or surgical procedures, and even more so if done without the knowledge or consent of the child’s parents.

To emphasise again, before going ahead with social transition, schools should get the best multi-disciplinary team around the table – including clinical professionals – and parents. In children’s healthcare the legal presumption is that parents act in the best interests of their children, until and unless there are strong grounds to suggest otherwise. There is no other situation where a school would make a significant life changing decision about a child without involving the parents – these children should not be treated any differently.

I understand that my comments may make those experiencing gender distress anxious, particularly when they may be waiting to access support from the NHS. More needs to be done to ensure that children do receive that support in a timely fashion, and more generally that being gender non-conforming is accepted and supported. Stereotypes of what it means to be a boy or girl can be challenged. But it is important that we take a prudent approach, particularly as we await the full Cass report.

Interpretations that support unthinking and absolute approaches to gender are rooted in new political ideologies outside the intention or scope of the Equality Act. They undermine other rights which do merit protection under the Act; including protecting those who attempt to question the dogma.  These ideologies propagate the view that a person’s biological sex is quite distinct from their gender. These theories are premised on an assumption that regardless of biological sex, children must be assisted to decide their gender. This highly-contested outlook presupposes that gender is subjective and binary approaches to sex are exclusionary. To assert that a person’s biological sex is objective and cannot be changed is now a risk to someone’s employment status. Freedom of thought, belief and conscience are often set aside in this debate.

These ideas are pervading the public sector and are being taught in some schools without any democratic scrutiny or consideration of the consequences. It is a highly politicised agenda promoted under the guise of  ‘diversity, tolerance and inclusion’. This is despite the DfE guidance published in February this year which makes clear that where partisan political views are covered, schools ensure that these are presented with the appropriate context, which supports a balanced presentation of opposing views. It is important to be clear what are scientifically tested and established facts, and what are questionable beliefs.

In my view, a primary school where they are teaching Year 4 pupils, aged eight and nine, ‘key words’ such as transgender, pansexual, asexual, gender expression, intersex, gender fluid, gender dysphoria, questioning or queer, would be falling foul of government guidance. Nor is it not age-appropriate to teach 4 year olds that people can change sex or gender. In line with Department for Education Guidance, primary schools do not need to set exercises relating to childrens’ ‘self-identified gender’.

In these instances, schools – who may be well-intentioned but misinformed –  are breaching their duty of impartiality and indoctrinating children into a one-sided and controversial view of gender. Age appropriateness is the critical factor, the younger the child and the more simplified the explanation, the greater the risk that schools won’t achieve the right balance.

Further, no child should be made to fear punishment or disadvantage for questioning what they are being taught, or refusing to adopt a preferred pronoun for a gender questioning child, or complaining about a gender questioning child using their toilets or changing rooms, or refusing to take part in activities promoted by Stonewall or other such organisations. The right to freedom of belief, thought, conscience and speech must be protected.

True diversity and equality are at risk when, as a society, we divide everyone into separate groups and then silence views which may challenge those groups. This is not what democracy is about and it is not what the law requires. Of course this is a complex and emerging area of the law, but I hope to provide legal clarity to schools and parents today.

  1. Conclusion

We have gone through a lot today, but I want to make two concluding remarks so we don’t lose sight of the bigger picture.

First, what I have considered today is not “whether” human rights should be protected in this country, but “how” they should be protected. And I have endeavoured to state the legal position.

This takes me to my second point. The specific issues that I have raised are controversial, and no doubt will animate society with diverging views on the scope of the competing human rights engaged. No matter what side of the debate one takes on the scope of fundamental rights, and what the law ought to be, the primary and legitimate vehicle to resolve disagreement is Parliament. The reason for this is simple and yet profound: it is because our Parliament is elected by the people, for the people, to enable self-government.  Parliament – the voice of the people and the original source of law – must answer these profound questions. And clarity of law is vital to achieve that goal.

Thank you

SNP – still the party of independence?

Independence has always been my thing. I remember my first foray into Scottish politics when, at the age of twelve, I represented the SNP in our school mock election. I came third (out of three), with the Tories edging out Labour for the top spot. One of the last Tory wins in Scotland, perhaps?

That was my first and, for a long time, last involvement in politics, short of voting. Early on, I tended to be a tactical voter, at first anyone to keep out the Tories, then anyone to keep out Labour and then SNP to keep out the unionists.

It wasn’t until 2011 that I really got involved. Following the SNP majority in the Holyrood election and the certainty of a referendum, I knew I had to do my bit. I joined the SNP because I thought that, under Alex Salmond, this could be our first real chance, and possibly our best chance, of independence and the SNP were the right party to make it happen.

In common with lots of others, I worked hard during the campaign, often seven days a week, talking to folk, delivering leaflets, helping to organise activities, just keeping going.

On the day of the referendum, going round the polling places, chatting to voters, I was convinced we had won. The result was the biggest disappointment of my life. I couldn’t understand how the vast majority of people telling me they voted Yes turned into the answer we got. I was devastated.

So why am I telling you all this? It’s not to get brownie points for effort, too late for that now, and it’s certainly not to bring back memories, there’s too many memories (about the result) I want to forget. No, it’s just to explain the disappointment I feel about the way things are now with the SNP. The disappointment I feel that the SNP under Nicola Sturgeon has become a totally different party from the one I joined in 2011.

It all started just after the referendum, pretty much from the moment Nicola Sturgeon took charge. With hindsight, there were so many clues, but, like many other SNP members, I was able to find excuses because I just couldn’t bring myself to believe that she wouldn’t be just as supportive of independence as Alex Salmond had been (and still is). So it took me three or four years before I lost all confidence in the SNP as a vehicle to deliver independence.

Of course, at first there was no real alternative. No other party existed that could take the SNP’s place, so they could pretty much continue with their strategy of pre-election independence carrots followed by post-election failure to deliver.

The arrival of ISP and Alba changed the political situation enormously. Now there was an alternative and thousands of disaffected SNP members flocked to join them. With that came a change in SNP tactics. No longer just the carrot party, they became the carrot and stick party, carrots for the electorate and big sticks for any person or group who dared to challenge them. Of course, no political party likes a newcomer coming in and ‘stealing’ their support, but few others have been able to involve the police, the law officers and the judiciary in their attempts to get rid of their opponents. How this happened is a discussion for another day, but suffice to say that political control of the main arms of justice in the country is not a good thing.

Now the SNP spend so much time trying to get rid of all opposition, trying to get rid of women only spaces and trying to make it a hate crime to disagree with government policy that they don’t really have enough time left to think about how to bring independence closer, to talk about how to bring independence closer, and, above all, to do something to bring independence closer.

The last eight years of SNP inaction must have nearly decimated the Scottish carrot crop, but now, as the carrots grow mouldy because they don’t have the wherewithal to come up with fresh ones, they’ve been pressured (by Alba and ISP perhaps) into replacing their meaningless talk about independence with equally meaningless papers describing the sunny uplands of independence with no mention about how we’re going to get there and no indication that they’re up for the challenge.

So how do I feel today. My feelings about independence haven’t changed. After being an independence supporter for over seventy years, nothing’s going to change that now. I’ll die being an independence supporter, but, increasingly, I worry that independence, for me, will be an unrealised dream. In 2014, I thought nothing could stop us. In the following three or four years, I thought nothing could stop us. But now I see that there is something that could stop us, but who would have thought that the something would be the SNP.


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Gayle’s response to ‘the trust has gone’

Is it England’s fault that Scotland is in its current state, or is the Scottish Government’s lack of assertiveness responsible. Here, Gayle makes a convincing case for the latter.


If you look at it from the English establishment perspective this is what they see daily: Scotland, who is their equal and signatory partner, refuses to take responsibility for ANY and ALL political decisions. Scotland constantly defers governance and then complains when England, whose set of priorities is vastly different from those of Scotland, makes political decisions that suit its needs.

Scotland is bound to the same terms as England yet refuses to acknowledge its own constitution, laws and rights and instead seeks those of England, while Scotland is an independent country within GB it outright refuses to act accordingly and ignores the many breaches to the treaty. Even when England categorically states that to them UK means a GREATER ENGLAND with Scotland extinguished and subsumed into it and that they never enacted the treaty and if they ever had it was no longer the case, Scotland ignores it and continues as though nothing was ever said, where in the parliament of GB English parliamentary conventions has no place Scotland upholds them, when Scotland should be sitting directly opposite the English government in the chamber it prefers to sit at the back of the room and rely not only on English policy making but on its institutions.

Where Scotland provides the capital to the union it acts as a silent business partner. In short, to the English government they see a weak and pathetic partner who refuses to assert any of its rights and happily accepts abuse thrown at it no matter what.

Scotland has forgotten how to govern itself but will not admit it to its own people so excuses come easily to its own politicians. Everything is big bad England’s fault when all Scotland need ever do is assert itself. If England is to be cast as the panto baddie then they will play the role well.

There is ABSOLUTELY NOTHING stopping Scotland from standing up and telling England to get tae… That they are equals and partners not possessions. That from here on out Scotland will take no more of the abuse, admittedly self inflicted. Yet it refuses to do so.

When Alba stood up and asserted Scotland’s rights that should have been the moment the SNP government stood up for Scotland. But no, they put petty political rivalry before country. They demonstrated that when push comes to shove they will side with England not Scotland and its folks. That to me is the biggest betrayal of them all. They simply rode roughshod over Scotland in order to preserve their lifestyles and maintain the illusion of governance when they are incapable at every single level. That is perhaps why they also permit English political parties to stand in Scotland.


Many Facebook sites are increasingly censoring bloggers like myself who are sometimes critical of the actions of the SNP and the Scottish Government. They are attempting to prevent bloggers from getting their message out, so we have to depend on readers sharing the blog posts. If you liked this post or others I have written, please share this and take out a free subscription by clicking the follow button on the home page or on the posts. You will then be notified by email of any new posts on the blog. Thank you.