Petition Of For Women Scotland Limited For Judicial Review Of The Definition Of "woman" Contained In The Gender Representation On Public Boards (scotland) Act 2018 And Decisions Of The Scottish Ministers Related Thereto (first) The Lord Advocate And (second) The Scottish Ministers And For Public Interest Intervention The Equality Network (intervenor)
| Jurisdiction | Scotland |
| Judge | Lady Wise |
| Neutral Citation | [2021] CSOH 31 |
| Docket Number | P697/20 |
| Date | 23 March 2021 |
| Court | Court of Session |
| Published date | 23 March 2021 |
OUTER HOUSE, COURT OF SESSION
[2021] CSOH 31
P697/20
OPINION OF LADY WISE
In the petition of
FOR WOMEN SCOTLAND LIMITED
Petitioner
for
Judicial Review of the definition of “Woman” contained in the
Gender Representation on Public Boards (Scotland) Act 2018 and decisions of the
Scottish Ministers related thereto
(FIRST) THE LORD ADVOCATE AND (SECOND) THE SCOTTISH MINISTERS
Respondents
FOR PUBLIC INTEREST INTERVENTION THE EQUALITY NETWORK
Intervenor
Petitioner: O’Neill QC; Balfour & Manson LLP
Respondents: Crawford QC, Irvine; SGLD
Intervenor: Bain QC; Justright Scotland (written submission only)
23 March 2021
Introduction
[1] The petitioner is a private company registered in Scotland. Its members comprise a
group of women with an interest in promoting women’s rights and children’s rights in this
jurisdiction. The first and second respondents are the Lord Advocate and the Scottish
2
Ministers respectively. In essence the petition challenges certain provisions of the Gender
Representation on Public Boards (Scotland) Act 2018 (“the 2018 Act”) as relating to reserved
matters and so beyond the legislative competence of the Scottish Parliament. The petitioners
contend also that certain provisions of the 2018 Act are incompatible with EU law and the
UN Convention on the Elimination of All Forms of Discrimination Against Women
(“CEDAW”). The final challenge is that the Scottish Ministers acted unlawfully and in
breach of the Public Sector Equality Duty (PSED) imposed by section 149 of the Equality
Act 2010 (“EA 2010”) and associated regulations when bringing the substantive provisions
of the 2018 Act into effect and issuing statutory guidance thereanent. It should be
understood at the outset that the case does not form part of the policy debate about
transgender rights, a highly contentious policy issue to which this decision cannot properly
contribute. At its core, this litigation is concerned with whether certain statutory provisions
were beyond the legislative competence of the Scottish Parliament. While I record certain
statements that were made about Scottish Ministers’ policy or position on transgender
rights, that matter was at best tangential to the central dispute and has had no bearing on the
decision that I have made.
Relevant legislative provisions
Scotland Act 1998
[2] Section 28 of the Scotland Act 1998 as amended (“the 1998 Act”) provides that,
subject to section 29, the Scottish Parliament may make laws to be known as Acts of the
Scottish Parliament (“ asp or asps”). Section 29 provides:
“(1) An Act of the Scottish Parliament is not law so far as any provision of the Act is
outside the legislative competence of the Parliament.
3
(2) A provision is outside that competence so far as any of the following
paragraphs apply—
(a) it would form part of the law of a country or territory other than Scotland,
or confer or remove functions exercisable otherwise than in or as regards
Scotland,
(b) it relates to reserved matters,
(c) it is in breach of the restrictions in Schedule 4,
(d) it is incompatible with any of the Convention rights or with EU law …
(3) For the purposes of this section, the question whether a provision of an Act of
the Scottish Parliament relates to a reserved matter is to be determined, subject
to subsection (4), by reference to the purpose of the provision, having regard
(among other things) to its effect in all the circumstances.”
Section 30 provides that Schedule 5 of the Act, which defines reserved matters, shall have
effect. Schedule 5 provides:
“Part II - Specific reservations
Preliminary
1. The matters to which any of the Sections in this Part apply are reserved matters
for the purposes of this Act.
2. A Section applies to any matter described or referred to in it when read with
any illustrations, exceptions or interpretation provisions in that Section.
3. Any illustrations, exceptions or interpretation provisions in a Section relate
only to that Section (so that an entry under the heading ‘exceptions’ does not
affect any other Section).
…
Reservations
L2. Equal opportunities
Equal opportunities
Exceptions
The encouragement (other than by prohibition or regulation) of equal opportunities,
and in particular of the observance of the equal opportunity requirements.
Imposing duties on—
(a) any office-holder in the Scottish Administration, or any Scottish public
authority with mixed functions or no reserved functions, to make
arrangements with a view to securing that the functions of the office-holder
or authority are carried out with due regard to the need to meet the equal
opportunity requirements, or
(b) any cross-border public authority to make arrangements with a view to
securing that its Scottish functions are carried out with due regard to the
need to meet the equal opportunity requirements.
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...sim-ultaneously (as some have suggested –see for example the arguments made by thepetitioners in For Women Scotland Ltd Petr [2021] CSOH 31).However, the translation of feminist intersectional work into administrative or legalcategories has proven challenging –section 14 of the EqA itself w......