By: Lance Baynham

Let’s talk about sex: case note on For Women Scotland Limited v The Scottish Ministers [2023] CSIH 37

5 December 2023 by Lance Baynham

In For Women Scotland Limited v The Scottish Ministers [2023] CSIH 37 (“For Women Scotland 2”), the Inner House of the Court of Session has confirmed (for Scotland, at least) the relationship between the Gender Recognition Act 2004(“GRA”) and Equality Act 2010 (“EqA”). In summary, it was held that the meaning of sex in s.11 EqA incorporated the GRA framework. The upshot is that, for transgender people, sex under the EqA is determined by possession of a GRC. Thus, for EqA purposes, the sex of a transgender person without a GRC is their natal sex. On the other hand, the sex of a transgender person with a GRC is their “acquired” (to use the language of the GRA) gender.

This case note briefly sets out some of the relevant law, explores the background to the case and the judgment, and then offers some brief comments by way of conclusion. References in square brackets are to paragraphs of the judgment.

Unpublished policy and unlawful detention: a case note on R (MXK) v Secretary of State for the Home Department

29 June 2023 by Lance Baynham

In R (MXK) v Secretary of State for the Home Department [2023] EWHC 1272 (Admin), the Administrative Court held that:

1. the repeated detention of the claimants – foreign nationals with limited leave to remain – when they returned to the UK from travelling abroad, so that they could be questioned about their NHS debts, was unlawful;
2. the policy pursuant to which the claimants were detained (the “Policy”) was unlawful because it contained a positive statement of law which was wrong or, alternatively, because it failed to provide a full account of the legal position;
3. the Policy was unlawful because it was unpublished; and
4. the Secretary of State for the Home Department (“SSHD”) was in breach of the public sector equality duty (“PSED”) under s.149 of the Equality Act 2010.

In reality, the facts carried the day. This was true not only in relation to the unlawful detention issue, but also on some other points – for example, the SSHD failed to evidence any public interest in not publishing the Policy or any consideration given to the equality impacts of the exercise of the relevant powers of detention. Insofar as there are lessons to be learned, they are likely to be found in the criticisms levelled at the evidence (or lack thereof) provided by the SSHD.

Good enough for jazz: how well does the government need to understand its Paris Agreement obligations? A case of emissions and omissions

24 January 2023 by Lance Baynham

In R (Friends of the Earth Ltd) v Secretary of State for International Trade/UK Export Finance (UKEF) [2023] EWCA Civ 14, the Court of Appeal considered the implications of the Paris Agreement on climate change for governmental decision-making in relation to investing in a liquified natural gas project in Mozambique (the “Project”). Sir Geoffrey Vos MR, with whom Lord Justice Bean and Sir Keith Lindblom SPT agreed, dismissed Friends of the Earth’s appeal against the Divisional Court’s decision to dismiss their application for judicial review.

The judgment sets out the approach which is to be taken where the government declares itself to be acting in accordance with the UK’s obligations under an unincorporated international treaty. The Court of Appeal also considered the well-established duty that a decision-maker must “ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly” (Secretary of State for Education and Science v Metropolitan Borough of Tameside [1977] AC 1014 at 1065, known as the “Tameside duty”). Put briefly, the Court of Appeal held that:

1. the question of whether funding the Project was consistent with the UK’s international obligations under the Paris Agreement was accepted by the parties to be justiciable;
2. however, the Paris Agreement, as an unincorporated international treaty, did not give rise to domestic legal obligations;
3. having decided to have regard to the Paris Agreement, the respondents did not need to be right that funding the Project was consistent with it, so long as that view was “tenable”; and
4. failing to quantify the indirect greenhouse gas emissions from the downstream distribution, storage and use of the gas produced (known as “Scope 3” emissions) – which would undoubtedly be by far the greatest part of the emissions caused by the Project – before deciding to finance the Project, was not a breach of the Tameside duty.