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.


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The trust has gone

Open letter to Nicola Sturgeon MSP FM

Dear Nicola,

Earlier I saw a tweet highlighting the lack of excitement that your referendum announcement has created in the wider YES movement.  Despite the promise of a referendum in about 15 months time, there’s nothing like the activity and the passion that was on display about 15 months before the first referendum.

But why is that?  Have folk in Scotland gone off the whole idea of independence?  Is it a foregone conclusion the the No side will win?  Or have folk noticed that, despite all that’s being said by the SNP and, in particular, by yourself, history has shown that words mean nothing unless followed by actions and, unfortunately, in recent years, SNP words are rarely, if ever, followed by actions.

Following the loss of the 2014 referendum vote, Alex Salmond resigned, and was replaced by you, his deputy, as First Minister and party leader, amid a huge increase in membership and support for the SNP, prompted, in part, by the actions of the English government in Westminster voting down all the benefits Scotland had been promised following a No vote.

So you were leading a buoyant SNP, with many No voters in the referendum regretting their vote, disgusted by the actions of Westminster.  A perfect pro-independence storm, you might think.

In the run-up to the following year’s UK general election, with a huge SNP majority of Scottish seats a certainty, you unexpectedly stated that a vote for the SNP was not a vote for independence.  Why would the leader of the alleged ‘party of independence’ not make the most of this opportunity?  Was this the first sign of a change in emphasis on independence?

Despite gaining 56 out of 59 seats in Westminster, a mandate for independence, nothing was done to further the cause in the months that followed.

Nicola, we trusted you to deliver independence, but you let us down in 2015.

Then came the Brexit referendum.  The SNP campaigned against Brexit , but, unsurprisingly, you could not persuade the UK government to treat each part of the UK separately, so the decision in favour of Brexit was an English decision, completely ignoring the Scottish and Northern Irish decisions against.  We will not be dragged out of the EU against our will was your slogan, but, in the event, most of your post-referendum campaigning was in England, trying to overturn the English decision.  Finally, faced with the intransigence of the English government, independence was the only way to keep Scotland in the EU and, with that certainty, you took no action. You simply dropped the slogan and allowed the English government to overrule Scotland’s wishes.

Once again, we see you allowing Scottish opinions to be overruled by the English government without taking action to prevent it.

Nicola, we trusted you to deliver independence, but you let us down in 2016.

In the snap 2017 UK general election, despite the pleas to ‘give us a mandate’, the word independence was banned from SNP election materials and, with no promise of independence, many former SNP voters simply didn’t turn out. That resulted in a big drop in SNP support and a big reduction in the number of SNP MPs elected. However, the election still resulted in a majority of SNP MPs, but, once again, no action followed the mandate. Nothing was done to bring independence closer.

Nicola, we trusted you to deliver independence, but you let us down in 2017.

As the mandates piled up with still no action to bring independence closer, the number of unhappy SNP members voting with their feet and leaving the party was increasing, but this didn’t seem to overly worry you or the rest of the SNP leadership. You just refused to publish membership figures and pretended it wasn’t happening.

A further UK general election followed in 2019 as Boris Johnson sought to confirm his premiership. Once again, the SNP asked for a mandate, once again they got one and once again, no action on independence followed.

Nicola, we trusted you to deliver independence, but you let us down in 2019.

Now let’s consider the latest national election, for the Scottish Parliament in 2021 and another mandate demanded by the SNP. A referendum by the middle of the parliament, or a referendum by the end of 2023, was your cry, a tight timescale, a year less than the time it took in 2014. The justification offered for the feasibility of the shorter timescale was that, coming only nine years after the first referendum, many aspects of the preparation would take less time or even wouldn’t have to be done at all.

Despite all the aforementioned justification, you would have thought that you would have been anxious to get started on the preparatory work, but that didn’t seem to be the case. In the event, it wasn’t until the following year, this year, that any progress was made.

You announced that a further request for a Section 30 would be made and, if that was rejected by Boris Johnson, the next UK General Election, likely to be in 2024, would be treated as a plebiscite on Scottish independence. This latter point was surprising as up until that very day, you had been solidly against a plebiscite, describing it as a hindrance to the independence cause and describing those making the suggestion as idiots, or worse. We now know that, as most people expected, Johnson rejected the Section 30 request, not giving it more than a moment’s thought.

The next action was to submit a request to the English Supreme Court for a decision on whether a referendum was within the competence of the Scottish Government. As with the plebiscite, this was a surprising move, as the Scottish Government had gone to great lengths to destroy Martin Keatings attempt to establish the same thing just a year earlier. I suppose some might also think it strange that the Scottish Government should be asking an English court (I know it’s called the UK Supreme Court, but as there’s no such thing as UK law, it isn’t really) to establish whether they can hold a referendum when you and the rest of the SNP leadership appear to accept that the Scottish people are sovereign, not an English court.

Now we have the release of the first two of the promised series of papers on (and here I quote) “Building a new Scotland”. Unfortunately, here I have to confess a certain amount of disappointment.

The first paper, a comparison with other similar sized European countries, shows clearly that they are better off than Scotland in so many ways, implies that Scotland, with independence, can be the same, but gives no indication of the steps that would be taken to achieve this goal.

The second paper, which focuses on democracy, highlights Scotland’s current democratic deficit and the problems a government focused on the South of England creates in Scotland, but again, beyond the aspiration of independence, no positive steps are laid out to make this a reality.

More papers are to come and we can only hope that they will concentrate more on the actions you and the Scottish Government plan to take to achieve the goals set out in each paper. Without that, you could well be accused of following the same failed path of words not leading to actions.

After such a series of missed opportunities, is it surprising that many Scots are reluctant to place much trust in your current statements?

One last point, an action you seem determined to take is to try to prevent people who don’t agree with every SNP policy from being part of independence campaigning. These policies include the decision to reform the Gender Recognition Act in ways many Scots disagree with, thus seeking to limit the numbers campaigning for independence. Placing the highly controversial GRA reform above the need for maximum unity in the independence movement seems, at least, counterproductive and, at worst, an action likely to limit the chances of success.

Nicola, we are trusting you to deliver independence. Let’s hope you won’t let us down again in 2024.

Yours in independence

Angry Weegie

Is this the death of the SNP?

Or … They never saw it coming?

Last Wednesday, at the increasingly ludicrously named Prime Minister’s Question Time, the two Alba MPs, Neale Hanvey and Kenny Macaskill, were thrown out of the Westminster Commons chamber for protesting about temporary PM Boris Johnson’s immediate and unthinking rejection of the Scottish Government’s request for a Section 30 order.

Enough has already been said about the behaviour of the Speaker, who was so apoplectic about Scots asking questions about Scottish democracy that many members (not Tories, obviously) feared for his health. For those who want to see what democracy in Westminster is like, have a look at this.

You should remember that a Section 30 request is SNP policy, so you might expect that the considerably more numerous SNP MPs would have supported this attempt by fellow Scots to point out the democratic deficit in refusing the Scottish people the opportunity to decide the government of their choice, for which a majority of Scots had voted in the 2021 Holyrood election. Not only did the so-called party of independence not support the Alba MPs, but some actually joined in the abuse hurled at them from the unionist benches.

So we had the astonishing situation that an attempt to show the UK government the error of their ways in relation to SNP party policy was being opposed by the MPs representing that very party. Weird or what?

In the vote that followed, called by the Speaker, to confirm the expulsion of the Alba two, the SNP members sat on their hands. With one exception (Angus Brendan MacNeil), they abstained. They let their hatred of the Alba party get the better of their desire to support SNP party policy, assuming, of course, that they had any real desire to support this party policy in the first place.

Those two Indy stalwarts, John Nicholson and Pete Wishart, were only too anxious to be the first to mock the Alba Two for doing what they themselves should be doing. Here’s what Kevin McKenna had to say about them.

Two of the SNP group, John Nicholson and Pete Wishart – aka “bumptious” and “hopeless” – opted to mock the two suspended Alba MPs. It’s more or less the sum total of their contributions at Westminster since they began living the good life in London. Indeed, so mesmerised is Mr Wishart by Westminster’s ancient accoutrements that he wanted to become Speaker of the House in 2019 to succeed John Bercow.

But perhaps hatred is the wrong word for the SNP’s attitude. Is it not likely that the real reason for the SNP MP’s behaviour is their fear that their failure to pursue independence will begin to hurt them in the ballot box if there is another party which is more aggressive in their pursuit of independence and ballot box hurt could mean the end of their cushy, well paid sinecures, and that would not do. Have the SNP been the only game in town for so long that they just don’t want competition emerging?

Many of you may remember the ‘good old days’ when Scottish voters elected large majorities of Labour MPs. This finished in 2015 when Scots finally realised that Labour were in it for themselves and had no interest whatsoever in doing anything to help the people of Scotland. During the time when Labour were in the majority, their treatment of the SNP was based on the Bain Principle, named after Willie Bain, a Scottish Labour MP who let the cat out of the bag that Labour would not support any SNP pro-Scottish efforts in Parliament, no matter how much harm would be done to people in Scotland as a consequence.

Are there any similarities between Labour’s attitude to the SNP pre-2015 and the SNP’s attitude to Alba today? Well, here’s a quote from an earlier blog post of mine, The SNP Walkouts.

Certainly, at the moment, the only event that causes SNP members walk out of the chamber is one of the Alba MPs standing to speak. Obviously, the last thing you would expect SNP MPs to be interested in would be the opinion of a fellow independence supporting MP. (Did I just accuse SNP MPs of supporting Scottish independence? Will washing out my mouth with soap and water absolve me of this heinous crime?).

And here’s a quote from a current SNP MP about what they’re not in Westminster to do. Does make you wonder why they are there, apart from the money, of course.

Kirsty Blackman: “I am not in Westminster to pressure the government for a referendum. Constitutional issues are not my biggest concern. In fact, I very rarely talk about Scottish independence in the commons.” Thanks to Calton Jock for letting us all know current SNP thinking.

So the SNP are not in Westminster to talk about a referendum or about independence. They’re certainly not there to support fellow Scots from another party who do want to talk about a referendum and independence.

Is this the SNP’s reinvention of the Bain Principle? We all know that nothing happens in the SNP without Nicola Sturgeon’s knowledge and approval, so should it be called the Sturgeon Principle?

We all know what happened to Labour in Scotland when folk realised the truth that they were not in Westminster to make life better for Scots, only to make life better for themselves. Will the SNP face the same fate when folk realise they’re not in Westminster to deliver independence to the Scots, only to deliver financial independence to themselves.


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I believe in unity, just not with ‘them’

This week saw the most post-election independence activity ever from Nicola Sturgeon, perhaps pushed into it by the enormous success of the Wee Alba Book, with crowded venues at every event organised to discuss it. However, several important questions, such as the date, the currency and the borders, were either not addressed or were glossed over. In particular, there was one very important aspect of any campaign that Sturgeon refused to address, even when directly questioned.

One thing that all Independistas agree on is the need for a united campaign. Without unity, there won’t be a campaign, there will be several different campaigns. Without unity, there will be disagreements between the campaigns, there will be arguments about the correct way forward, there will be different points of view on all of the questions that damaged Yes in the 2014 referendum. Without unity, voters will think that independence is all about arguments and confusion. Without unity, independence will not happen.

Despite the obvious disadvantages, Nicola Sturgeon has consistently refused to allow the SNP to have any contact with Alba and ISP and the other independence supporting groups and parties. In fact, the opposite is true as she has encouraged her followers to describe the other independence supporting parties in the most unflattering of terms, describing them as enemies, not friends, as if trying to ensure that pro-independence voters have only one realistic option, rather than trying to maximise the independence vote.

A recent reply from an MSP to a query from one of his constituents pretty much confirms that there is no possibility of a collaborative relationship between the SNP and Alba. Typically, the SNP puts the whole blame on Alba.

Sturgeon gives the impression that she believes the SNP owns the Yes movement and there’s no need to discuss policy options with other groups. Recent events have shown how true that is. Last Tuesday, following the presentation of the first in a series of papers highlighting the advantages of independence (a bit of a damp squib considering how it was announced), Sturgeon was asked if she saw a role for Alba in the independence campaign. She refused to give a direct answer.

What then could be the reason for Nicola Sturgeon to rule out SNP collaboration with any other independence group? What could be the reason for her to do the one thing that all independistas agree will assure a No vote?

Two possible explanations occur to me, neither great, but one worse than the other.

First, it could be that Sturgeon believes that she knows all the answers and that independence can only happen if she calls all the shots. Based on her behaviour as First Minister and leader of the SNP, it is obvious that Sturgeon needs to be in charge. She allows no dissenting opinions. Nothing happens in the Scottish Government or in the SNP without her say-so so it wouldn’t be a shock if she acts the same way about independence. Her policy of my way or the highway can be seen from the swift action she takes to sideline any party members with their own opinions. Those promoted are those who agree with her every statement. Whether that leads to better government and whether it would lead to a winning independence campaign is in some doubt.

Second, and much worse, it could be that Sturgeon is making decisions to sabotage the independence movement, and she could be doing it deliberately (© George Foulkes). Could that be the explanation for her strange and counter-productive infatuation with GRA reform and Hate Crimes legislation which are obviously creating division in the Yes movement. Could that be the explanation for the otherwise astonishing decision to sell off Scotland’s wind energy future for buttons. Could that be the explanation for her ignoring all the earlier opportunities to advance the cause of Scottish independence, particularly in 2016 with the Brexit vote.

If Nicola Sturgeon is serious about independence, she will have to accept that any campaign is not just about the SNP. There are other parties with other opinions whose views will have to be discussed and accommodated within any campaign strategy. Can she do this? Will she do this?

The Gemme’s a bogey? Correction

The gemme’s a bogey if we don’t all make the effort to change the current situation.

No doubt, you may already have seen loads of analysis following the Scottish local elections, now just about three weeks ago as I write.

Well, here’s more.

I’ve looked at the voting figures for this month’s elections and compared them to the last local elections in 2017.

Most of you will have seen that the SNP proportion of first preference votes increased, from 32.3% in 2017 to 34.1% this year. The turnout was lower, 47% in 2017 and 44% this time, that in itself an indictment of our government’s efforts to keep the electorate enthused, but what about number of votes.

The number of SNP first preference votes increased from 620,820 to 636,950. That’s an extra 16,130 voters who, on a reduced turnout, decided that the SNP was the party they wanted to support. At a time when independence options not available in 2017, like Alba and ISP, were on (some of) the ballot papers, and when more and more adverse comments about the government’s current performance are appearing in both mainstream and social media, more people are voting for a party which almost certainly won’t bring independence. Won’t even try. They’re also voting for a party with an increasingly poor reputation for good governance. And don’t tell me that local elections are not about national issues, because we all know that most voters vote for the party, not the individual.

How can you explain that the more obvious it becomes that the SNP doesn’t see independence as a priority (some would go even further than that), the more people are voting for them. How can SNP support increase when so many have seen through their charade around the independence question and are providing the evidence for everyone to see.

I believe that there are two groups of people who now feel able to support the SNP.

Firstly, there may be lots of people in Scotland who are frightened of independence but are too embarrassed to admit it, even to themselves. Their concern about independence may be down to fear of the unknown, fear of losing what they have, be it little or not so little, or just fear of having to stand on their own two feet after years of leaving all the big decisions to their bigger neighbour. I suppose this is a change from several years ago when some independence supporters were too embarrassed to admit their support of what, at the time, seemed like a way out idea.

Secondly, there are those who see themselves as British and want to remain in the United Kingdom, but see the SNP as a better option for the government of Scotland than the English controlled parties, who admittedly, don’t present a very high bar. This is hardly a new group. In the pre-SNP days of Labour majorities, many would vote Labour for Westminster and SNP for Holyrood, thinking they were the best parties for each parliament.

What connects these two groups is that their vote for the SNP is because they know full well that independence will never happen with the current SNP in charge. These additional votes come from people who don’t favour independence, either because of the fear mentioned above or because they still want to remain part of the Union, but they all realise that there is now no danger that the SNP under Sturgeon will ever seek to promote independence. They vote for the SNP because they know in their heart of hearts that the SNP will never deliver independence.

Are there now tens of thousands of voters, maybe even hundreds of thousands if you include the apathetic who didn’t bother to vote this month, who would vote for the SNP because they don’t want change. Voters happy with the illusion that devolution suits Scotland very well. If this has always been the SNP’s plan under Nicola Sturgeon, it has worked out beautifully.

How long can this continue. There may be little we can do about the unionists, despite the SNP telling us to concentrate on convincing the ‘soft Unionist noes’, whoever they are, but is there anything we can do about scared voters? Can we get scared voters to love the idea of independence? The answer to that may be no as well, unless we change the SNP into a party that shows everyone where independence can take us. Impossible? Maybe not. Maybe there is a way.

Well, we’ve heard many independence supporters say that if there’s no referendum in 2023, they won’t support the SNP again. Unfortunately, or fortunately if you’re the SNP, many of these people said a similar thing in 2015, 2016, 2017, 2019 and 2021. Many may actually keep their word and stop supporting the party, but despite the thousands of members deserting the SNP, their votes keep rising, leading me to think that leaving the party and not voting for the party are two unconnected actions, the second not necessarily following from the first.

In 2007, Alex Salmond knew that demonstrating that the Scottish Government could govern competently would encourage more folk to believe that Scottish independence was worth pursuing. And who can say it didn’t work. The period from 2007 to 2014 has been called the Golden Age of SNP government, because most of the advances the SNP boast about today came from that period. The voters saw this as well and their reaction boosted the SNP from minority government in 2007 to a majority in 2011. Unfortunately, this isn’t an option open to us now, as Nicola Sturgeon has taken a diametrically opposite approach, governing so incompetently, encouraging more folk to dismiss the whole idea of independence.

To improve the chance of change, we can always try to replace Sturgeon, though that would be pretty difficult as too many modifications have been made to the party’s internal processes to prevent ordinary members having any say in the running of the party. It’s a more likely possibility that she’ll be nominated for the UN job of her dreams and she’ll just go anyway. Off to pastures new, leaving behind her shattered country as her legacy.

My suggestion is a mass campaign of contacting your local SNP MP/MSP/Councillor telling her/him that you will only be voting for the MP/MSP/Councillor concerned at the next Westminster/Holyrood/Local Authority election if, and only if, the SNP have begun to cooperate with all other pro-independence groups and parties to create an agreed plan to deliver independence and to answer the questions unanswered from 2014, such as borders and currency. Of course, this would only have an impact if they received a whole load of contacts and if the writers were those likely to vote SNP, those, for example, who had voted SNP at the last election. So not Alba members, I suppose.

Would they pay attention? They might if it was going to affect them financially. We must all know that the continuation of their income is probably the only real motivator of today’s elected SNP politicians. If there were enough letters/emails, and they believed their job and therefore their income were threatened, they would pay attention, but it would take action from a large number all over the country, every region, constituency and ward. Just convincing a few MPs/MSPs won’t be enough and they’d be too scared anyway to do anything for fear of getting into Sturgeon’s bad books. There’s safety in numbers.

How many of you really want independence? How many of you are up for telling it as it is? How many of you think the chance of independence is worth a letter/email? How many?


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.

The gemme’s a bogey?

The gemme’s a bogey if we don’t all make the effort to change the current situation.

No doubt, you may already have seen loads of analysis following the Scottish local elections, now just about three weeks ago as I write.

Well, here’s more.

I’ve looked at the voting figures for this month’s elections and compared them to the last local elections in 2017.

Most of you will have seen that the SNP proportion of first preference votes increased, from 32.3% in 2017 to 34.1% this year. The turnout was lower, 47% in 2017 and 44% this time, that in itself an indictment of our government’s efforts to keep the electorate enthused, but what about number of votes.

The number of SNP first preference votes increased from 620,820 to 636,950. That’s an extra 16,130 voters who, on a reduced turnout, decided that the SNP was the party they wanted to support. At a time when independence options not available in 2017, like Alba and ISP, were on (some of) the ballot papers, and when more and more adverse comments about the government’s current performance are appearing in both mainstream and social media, more people are voting for a party which almost certainly won’t bring independence. Won’t even try. They’re also voting for a party with an increasingly poor reputation for good governance. And don’t tell me that local elections are not about national issues, because we all know that most voters vote for the party, not the individual.

How can you explain that the more obvious it becomes that the SNP doesn’t see independence as a priority (some would go even further than that), the more people are voting for them. How can SNP support increase when so many have seen through their charade around the independence question and are providing the evidence for everyone to see.

I believe that there are two groups of people who now feel able to support the SNP.

Firstly, there may be lots of people in Scotland who are frightened of independence but are too embarrassed to admit it, even to themselves. Their concern about independence may be down to fear of the unknown, fear of losing what they have, be it little or not so little, or just fear of having to stand on their own two feet after years of leaving all the big decisions to their bigger neighbour. I suppose this is a change from several years ago when some independence supporters were too embarrassed to admit their support of what, at the time, seemed like a way out idea.

Secondly, there are those who see themselves as British and want to remain in the United Kingdom, but see the SNP as a better option for the government of Scotland than the English controlled parties, who admittedly, don’t present a very high bar. This is hardly a new group. In the pre-SNP days of Labour majorities, many would vote Labour for Westminster and SNP for Holyrood, thinking they were the best parties for each parliament.

What connects these two groups is that their vote for the SNP is because they know full well that independence will never happen with the current SNP in charge. These additional votes come from people who don’t favour independence, either because of the fear mentioned above or because they still want to remain part of the Union, but they all realise that there is now no danger that the SNP under Sturgeon will ever seek to promote independence. They vote for the SNP because they know in their heart of hearts that the SNP will never deliver independence.

Are there now tens of thousands of voters, maybe even hundreds of thousands if you include the apathetic who didn’t bother to vote this month, who would vote for the SNP because they don’t want change. Voters happy with the illusion that devolution suits Scotland very well. If this has always been the SNP’s plan under Nicola Sturgeon, it has worked out beautifully.

How long can this continue. There may be little we can do about the unionists, despite the SNP telling us to concentrate on convincing the ‘soft Unionist noes’, whoever they are, but is there anything we can do about scared voters? Can we get scared voters to love the idea of independence? The answer to that may be no as well, unless we change the SNP into a party that shows everyone where independence can take us. Impossible? Maybe not. Maybe there is a way.

Well, we’ve heard many independence supporters say that if there’s no referendum in 2023, they won’t support the SNP again. Unfortunately, or fortunately if you’re the SNP, many of these people said a similar thing in 2015, 2016, 2017, 2019 and 2021. Many may actually keep their word and stop supporting the party, but despite the thousands of members deserting the SNP, their votes keep rising, leading me to think that leaving the party and not voting for the party are two unconnected actions, the second not necessarily following from the first.

In 2007, Alex Salmond knew that demonstrating that the Scottish Government could govern competently would encourage more folk to believe that Scottish independence was worth pursuing. And who can say it didn’t work. The period from 2007 to 2014 has been called the golden age of SNP government, because most of the advances the SNP boast about today came from that period. The voters saw this as well and their reaction boosted the SNP from minority government in 2007 to a majority in 2011. Unfortunately, this isn’t an option open to us now, as Nicola Sturgeon has taken a diametrically opposite approach, governing so incompetently, encouraging more folk to dismiss the whole idea of independence.

To improve the chance of change, we can always try to replace Sturgeon, though that would be pretty difficult as too many modifications have been made to the party’s internal processes to prevent ordinary members having any say in the running of the party. It’s a more likely possibility that she’ll be nominated for the UN job of her dreams and she’ll just go anyway. Off to pastures new, leaving behind her shattered country as her legacy.

My suggestion is a mass campaign of contacting your local SNP MP/MSP/Councillor telling her/him that you will only be voting for the MP/MSP/Councillor concerned at the next Westminster/Holyrood/Local Authority election if, and only if, the SNP have begun to cooperate with all other pro-independence groups and parties to create an agreed plan to deliver independence and to answer the questions unanswered from 2014, such as borders and currency. Of course, this would only have an impact if they received a whole load of contacts and if the writers were those likely to vote SNP, those, for example, who had voted SNP at the last election. So not Alba members, I suppose.

Would they pay attention? They might if it was going to affect them financially. We must all know that the continuation of their income is probably the only real motivator of today’s elected SNP politicians. If there were enough letters/emails, and they believed their job and therefore their income were threatened, they would pay attention, but it would take action from a large number all over the country, every region, constituency and ward. Just convincing a few MPs/MSPs won’t be enough and they’d be too scared anyway to do anything for fear of getting into Sturgeon’s bad books. There’s safety in numbers.

How many of you really want independence? How many of you are up for telling it as it is? How many of you think the chance of independence is worth a letter/email? How many?


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.