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The Gender Debate


jamamafegan

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I see Jo Cherry is taking the sensible approach and suggesting this could have been sorted in-house.

But then she forgets that Humza was voted in (just) to give the Nats Nippy Lite and that means grievance max and kowtowing to the Green freaks.

 

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21 minutes ago, Trogdor said:

You are working on the assumption that the UK Supreme Court will rule against the UK Government on a constitutional matter. It won't, irrespective of anything else. 

Moreover, this will also take a fair bit of time for resolution. 18 months would be quick. This won't be accelerated like the Section 30 was. 

I must have imagined the Article 50 case, the prorogation case, the Welsh Local Government Byelaws case and the Welsh Agriculture Bill case, then.

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7 minutes ago, Ad Lib said:

I must have imagined the Article 50 case, the prorogation case, the Welsh Local Government Byelaws case and the Welsh Agriculture Bill case, then.

I'd thought a doyen of constitutional law such as yourself may have a view. Or would that breach the civil service code?

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10 minutes ago, The_Kincardine said:

I see Jo Cherry is taking the sensible approach and suggesting this could have been sorted in-house.

But then she forgets that Humza was voted in (just) to give the Nats Nippy Lite and that means grievance max and kowtowing to the Green freaks.

 

It might have been a point if Cherry offered a comproming pathway given their statement of reasons, she doesn't. Her King's Council credentials seem to have deserted her objectivity on this occasion. 

Edited by welshbairn
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This case has (IMO) poor prospects of success.

This is not a comment on the policy merits of:

(a) the Bill

(b) the Governor General's veto and statement of reasons

It is an observation rooted in the extraordinarily wide drafting of section 35.

The legal standard of "reasonable belief" as to an "adverse effect" on the law "as it applies to" reserved matters is pretty much a slam dunk for the UK Government, because it is a very low bar. It is easy to substantiate even if you think Alister Jack is a moron who doesn't understand the Bill.

The problem is that what is permissible under the Scotland Act is considerably wider than what is constitutionally responsible or sensible.

This should have been resolved through a combination of (a) political concessions on both sides and (b) section 104 orders (to mitigate some of the cross-border issues).

But what we're really in is Sewel territory: something that relies on political actors respecting the spirit of something. The courts aren't equipped to resolve this in a way that protects devolution.

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47 minutes ago, welshbairn said:

From my perspective it's the casual and possibly unfounded use of section 35 for the first time that's the major issue. It should be tested. 

Waiting a few months and testing it on the ginger bottle racket might work out marginally better 

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12 minutes ago, Ad Lib said:

This case has (IMO) poor prospects of success.

This is not a comment on the policy merits of:

(a) the Bill

(b) the Governor General's veto and statement of reasons

It is an observation rooted in the extraordinarily wide drafting of section 35.

The legal standard of "reasonable belief" as to an "adverse effect" on the law "as it applies to" reserved matters is pretty much a slam dunk for the UK Government, because it is a very low bar. It is easy to substantiate even if you think Alister Jack is a moron who doesn't understand the Bill.

The problem is that what is permissible under the Scotland Act is considerably wider than what is constitutionally responsible or sensible.

This should have been resolved through a combination of (a) political concessions on both sides and (b) section 104 orders (to mitigate some of the cross-border issues).

But what we're really in is Sewel territory: something that relies on political actors respecting the spirit of something. The courts aren't equipped to resolve this in a way that protects devolution.

Do you think the 'statement of reasons' could pass the barrier of 'reasonable belief' in any neutral court?

Edited by welshbairn
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23 minutes ago, The_Kincardine said:

I see Jo Cherry is taking the sensible approach and suggesting this could have been sorted in-house.

But then she forgets that Humza was voted in (just) to give the Nats Nippy Lite and that means grievance max and kowtowing to the Green freaks.

 

A house that you want to get rid of? 

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22 minutes ago, welshbairn said:

Do you thinks the 'statement of reasons' could pass the barrier of 'reasonable belief' in any neutral court?

Short answer: yes

Slightly longer answer: the neutrality or otherwise of courts can be measured against potentially myriad axes. The UK Supreme Court is a neutral court by any party political standard, but the culture and outlook of courts can change with personnel and political context (especially on the appropriate intensity of judicial review).

Robert Reed's court is vanishingly unlikely to adopt an anxious scrutiny of political questions. Brenda Hale's might have been marginally more interested.

I think this case would have failed with even the most favourable UK Supreme Court bench, and I suspect it will fail (if not referred directly) in both the Outer and Inner Houses of the Court of Session anyway.

That is the real reason this case will take 18 months to a couple of years to resolve, I suspect. It's not immediately obvious that Schedule 6 can be used to fast-track it to the Supreme Court (my gut is there's an arguable case it can, but they won't want to encourage routinely skipping the Scottish courts).

Edited by Ad Lib
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20 minutes ago, welshbairn said:

It might have been a point if Cherry offered a comproming pathway given their statement of reasons, she doesn't. Her King's Council credentials seem to have deserted her objectivity on this occasion. 

It's a tweet so of limited value but it does say that someone with admirable legal experience and with, probably, a foot in both camps on this issue reckons a  compromise could be reached.

Humza would have gained a  lot of respect if he'd pursued this rather than doing what he's doing.

 

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14 minutes ago, Ad Lib said:

I'm not a civil servant.

Are we hair splitting? 

Your contribution is a useful one. I do agree with your wrt. resolution - political concessions and/or section 104 orders would have been the best way to resolve it. There is far too much political posturing between the UK & Scottish Governments because it plays well to their respective supporters. Hopefully, common sense will prevail at some point.

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1 minute ago, Ad Lib said:

Short answer: yes

Slightly longer answer: the neutrality or otherwise of courts can be measured against potentially myriad axes. The UK Supreme Court is a neutral court by any party political standard, but the culture and outlook of courts can change with personnel and political context (especially on the appropriate intensity of judicial review).

Robert Reid's court is vanishingly unlikely to adopt an anxious scrutiny of political questions. Brenda Hale's might have been marginally more interested.

I think this case would have failed with even the most favourable UK Supreme Court bench, and I suspect it will fail (if not referred directly) in both the Outer and Inner Houses of the Court of Session anyway.

That is the real reason this case will take 18 months to a couple of years to resolve, I suspect. It's not immediately obvious that Schedule 6 can be used to fast-track it to the Supreme Court (my gut is there's an arguable case it can, but they won't want to encourage routinely skipping the Scottish courts).

What would be your thoughts on the statement of reasons be if you were judging its reasonableness? It just seems totally bonkers to me.

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9 minutes ago, MazzyStar said:

A house that you want to get rid of? 

I'm on the fence re the kiddy-on parliament in Edinburgh.  It certainly needs to be reformed.  But if it can't be reformed then it certainly needs ditched.  In its current form, it's not doing what it was designed to do.

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5 minutes ago, Trogdor said:

Are we hair splitting? 

An occupational hazard.

I would say that, when you read the statement of reasons, it's very hard to conceive of what concessions could be made that would leave any meaningful bill in place to be passed. That is the strongest suit that the Scottish Government has to the effect that the reasons for vetoing the Bill aren't genuinely "section 35 ones".

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5 minutes ago, welshbairn said:

What would be your thoughts on the statement of reasons be if you were judging its reasonableness? It just seems totally bonkers to me.

Knowing what is meant legally by reasonableness, it clears the hurdle.

As a matter of reasonableness in ordinary parlance: it's riddled with contradictions and reads largely like arguments come up with after the fact to justify a policy position already held.

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14 minutes ago, carpetmonster said:

And the scientist who got called transphobic and lost their job? 

Jeezo I'm actually on a wee holiday with my family here, have ye no patience? 😅

 

I was actually thinking of the guy that got expelled from his masters course for his alleged transphobia, not his job, my apology for the imprecision in this occasion. 

He's been successful in his tribunal so far as the UKCP (UK Council for Psychotherapy) have been told they can't have the case thrown out. 

 

I can't quite keep up with the pace, obviously. 😬

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1 minute ago, Ad Lib said:

Knowing what is meant legally by reasonableness, it clears the hurdle.

As a matter of reasonableness in ordinary parlance: it's riddled with contradictions and reads largely like arguments come up with after the fact to justify a policy position already held.

I thought that 'reasonable' in legal terms meant what a random man or woman on the London omnibus would think. This new fangled definition has passed me by.

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11 minutes ago, f_c_dundee said:

Jeezo I'm actually on a wee holiday with my family here, have ye no patience? 😅

 

I was actually thinking of the guy that got expelled from his masters course for his alleged transphobia, not his job, my apology for the imprecision in this occasion. 

He's been successful in his tribunal so far as the UKCP (UK Council for Psychotherapy) have been told they can't have the case thrown out. 

 

I can't quite keep up with the pace, obviously. 😬

You'd posted multiple times since then, it smacked very much of bad manners. 

James Esses? Aye, he's a full time transphobe now. His GoFundMe's sitting at 115 grand; it's nothing if not lucrative. 

ETA - I hope his brief gets him a better result than they did when they represented Allison Bailey and turned 500k worth of crowdfunded dosh into a 26k payout. Well, I don't, but hey ho. 

Edited by carpetmonster
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Just now, welshbairn said:

I thought that 'reasonable' in legal terms meant what a random man or woman on the London omnibus would think. This new fangled definition has passed me by.

There are entire books written on intensity of scrutiny and reasonableness/rationality review.

This isn't (really) the Clapham omnibus test. That's the legal test about whether "the reasonable person" would reach a particular point of view or do a particular thing.

This is essentially a Wednesbury unreasonableness situation. The court will ask whether Alister Jack's grounds for believing the statutory test was met was within the range of responses someone in his position could plausibly have arrived at without taking leave of their senses, taking/failing to take into account relevant/irrelevant considerations, or reaching a decision manifestly in bad faith.

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