Where Scotland leads, the English government follows. Really? Well, how else to explain the government’s recent actions following the Supreme Court’s judgment in For Women Scotland (2) (“FWS”)? It seems to be hanging onto their manly kilts by following precisely the Scottish government’s behaviour – not just following this judgment but an earlier one (FWS (1) – see here).

What is the UK government doing? A question in three parts.

1. Does the government really accept the Supreme Court’s judgment?
2. If so, why are its lawyers in court currently putting forward arguments which run contrary to what that judgment says and which were argued before and rejected by the Supreme Court?
3. Who is responsible for giving the instructions to the government’s lawyers?

1. Acceptance

On the first, the government has certainly said so, on a number of occasions. Most recently, the Prime Minister said in Prime Minister’s Questions in response to Rebecca Paul MP that “the Supreme Court ruling must be implemented in full and at all levels” (see here). A clear statement? Apparently. But it begs the question as to what the government understands the Supreme Court ruling to mean. (Misunderstanding of the applicable law and previous judgments  – whether in error or deliberate – has been endemic on this topic.) The judgment itself was clear: it was accepted by all parties appearing before the Supreme Court before the judgment that anyone without a Gender Recognition Certificate remained their birth sex. The judgment determined that a Gender Recognition Act certificate did not change legal sex for the purposes of the Equality Act and, therefore, all relevant provisions of that Act which related to single sex exceptions (whether in relation to spaces, services, associations or sport) needed to be based on – and only on – biological sex.

The government asked the EHRC to draft a Code of Practice (practical guidance to assist service providers), which it has done. There is a current issue about why the responsible Minister has not laid that draft Code before Parliament (discussed futher here). But regardless of what that Code says, the law is clear (guidance cannot change it) and, as the Prime Minister (and other Ministers have said since April 16), the law (in place for 15 years, it’s worth remembering) must be followed. Some organisations have already done so (including the Labour party itself which has changed its internal rules relating to female only posts to limit these to women, excluding men who choose to identify as women).

2. Argument

The second question arises from the government’s arguments in the judicial review currently being brought by the Good Law Project (“GLP”) against the EHRC’s interim update. The government is named as an interested party. There is nothing unusual in it doing so in such cases, though note that it did not play any part at all in the hearing before the Supreme Court. It says that it is doing so as a neutral party, there to provide clarification on the government’s position and to assist the court.

But that is not what the government’s KC is doing. The KC Is putting forward arguments which were put before the Supreme Court and rejected. The judge has said in terms to government counsel that it is “trying to rewrite FWS”. Why, for instance, is counsel stating that transwomen i.e. men who identify as women should be allowed into a female only space, such as a public toilet, on a case by case basis, when the Supreme Court has already ruled that this is not in line with the law and unworkable. Government lawyers are putting forward arguments which either show a misunderstanding of the judgment or an attempt to relitigate it or interpret it incorrectly or to water it down or undermine it. Strong words. But these are not the arguments of a neutral party. They are arguments which the GLP could make and, indeed, is making. Why is the government doing so? What it is doing is inconsistent with what government Ministers have told Parliament. 

Who is being misled? Parliament? Or the courts? 

3. Responsibility

This brings us to the third question. Lawyers in court act on the client’s instructions. Which part of government is instructing the lawyers to make these arguments? Formally, it is the Minister for Women and Equalities (Bridget Phillipson) who is responsible. She will surely have taken advice from the government’s lawyers, ultimately answerable to the Treasury Solicitor and the Attorney-General. That legal advice is, of course, privileged. But the actual arguments in court are open. They show a government arguing in contradiction to what the Supreme Court judgment says and doing so in a lower court which is bound to follow the Supreme Court’s judgment. 

It is a curious decision for a government led by a KC, a politician who never tires of telling us of his legal experience, a government with an Attorney-General who has made a point of telling his cabinet colleagues that they must strictly follow the law, domestic and international, they must “always be guided by law not politics” and who has updated the internal guidance for government lawyers, making it much stricter and giving Ministers less leeway to take legal risks.

Why? Is this deliberate? Is this a misunderstanding? Is this an attempt to appease those Labour backbenchers who seem unwilling to accept the judgment and who want to water it down in some way? Or is it what might be termed the permafrost layer of management (whether in the civil service or the legal function) who are determined to frustrate the judgment or make it unclear or confusing, either because of their own personal position or ideological views or simply because they do not like it?  None of these considerations should play any part in the advice to Ministers or indeed in Ministers’ actions. Are they doing so here? 

This topic has been bedevilled by a continuing serious concern: the extent to which government (and other public bodies) have allowed a gross conflict of interest to arise, through their embrace of Stonewall “advice” (Stonewall are not lawyers) and membership of its schemes, and to continue to the detriment of civil service duties of impartiality and professionalism. These conflicts of interest are a serious breach of the Nolan Principles and have already led to one judgment against the police in Lindsay Smith v The Chief Constable of Northumbria Police in July this year for breaches of its duty of impartiality. (See here on the serious conflicts of interest and problems arising from association with single issue lobby groups.) 

The Scottish government pioneered this: stating one thing to Holyrood, the public and its favoured lobby groups it funded and the complete opposite to the courts. This has caused harm: as Lord Justice Hodge has said “people had been led to believe by public authorities, among others, for the last 15 years that they had rights, which they didn’t have”. How long will it take for governments to realise that there is always a price to be paid for dishonesty, a price often paid by the vulnerable? 

Not content with this, the SNP government has refused to change policies now in breach of the judgment and is forcing FWS to take it to court again (for the third time) because it insists on keeping men – often sex offenders – in women’s prisons (an issue which Rebecca Paul MP also raised with the PM during PMQs about Downview Prison). This is despite John Swinney saying that he “accepts” the judgment. It’s a novel constitutional concept: governments “accepting” the law while simultaneously defying or ignoring it. 

This underhandedness is not limited to this issue. Stephen Kinnock, the Palliative Care Minister, told an untruth to the Lords Select Committee looking at the Assisted Dying Bill when he said that the Equality Impact Assessment stated that the Bill has the strongest safeguards in the world. It says no such thing. Why has this not been corrected? Or is dishonesty in service of the “greater good” now fine?

Now we have the PM and other Ministers saying one thing to Parliament and government lawyers saying something different to the courts. This is unacceptable. Ministers need to clarify this – and without delay. The public and the courts deserve nothing less. 

Cyclefree