Interesting Links for 13-04-2023
Apr. 13th, 2023 12:00 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
andrewducker- 1. Block on Scottish gender reforms to be challenged in court
- (tags:scotland gender lgbt reform uk law )
- 2. Ukrainian hackers get access to Russian top-ranking intel officer's email
- (tags:hacking security Ukraine Russia )
- 3. Behold: The silliest keyboard!
- (tags:keyboard funny silly )
- 4. The US Army Increasingly Allows Soldiers Charged With Violent Crimes to Leave the Military Rather Than Face Trial
- (tags:military crime assault usa OhForFucksSake )
- 5. Who wants a bike with square wheels?
- (tags:bicycles design video )
no subject
Date: 2023-04-13 11:12 am (UTC)2. Hurrah!
3. Okay...
4. This is asking for several kinds of trouble down the road.
5. That would be a "no". Even after seeing how it can be made to work.
no subject
Date: 2023-04-14 08:54 am (UTC)The legal case (and to be honest the legislation it concerns) are not strongly supported by the Scottish public. I think they are going to become less so as they become conflated with the police investigation in to the Scottish National Party's finances and the role of Peter Murrell, Sturgeon's husband, in the misplacing of the missing funds.
The House of Commons library has some clear and concise primers on the Section 35 process
https://commonslibrary.parliament.uk/section-35-of-the-scotland-act-and-vetoing-devolved-legislation/
https://commonslibrary.parliament.uk/research-briefings/cbp-9705/#:~:text=What%20is%20section%2035%20of,deals%20with%20a%20devolved%20matter.
no subject
Date: 2023-04-14 09:19 am (UTC)Can you point me to more about this? Which small operators are they thinking of which currently require a GRC?
And I'm not sure how two standards for acquiring a GRC would affect anyone's process. The GRC for Scottish people is currently managed by the NRS*. Presumably this would continue. So the process for anyone who needs to check on this for a Scottish person would presumably continue to be to go to the NRS?
In any case, I am confused, so if you can link me to something explaining this I'd appreciate it.
*https://www.nrscotland.gov.uk/registration/gender-recognition
no subject
Date: 2023-04-14 09:25 am (UTC)no subject
Date: 2023-04-14 09:29 am (UTC)Because that seems rather like the Secretary of State can say "Because I think it might cause the moon to fall from the sky" about anything they don't fancy the Scottish government being allowed to vote for.
no subject
Date: 2023-04-17 10:56 am (UTC)Under S35 of the Scotland Act the Secretary of State for Scotland can veto any legislation that he has reasonable grounds to believe a) would be incompatible with the UK’s international obligations or not in the interests of national defence or b) would modify the law on reserved matters in such a way as to have an “adverse effect” on the operation of the law as it applies to reserved matters
1) The test for judicial review has a very high bar to overturning the exercise of discretionary power. I think in fact the bar is higher when a Secretary of State is acting as they are the people appointed to exercise the highest level of discretion. The Wednesbury Case is the touchstone for this standard. Reasonable grounds to believe is satisfied, for example, by the Secretary of State demonstrating that they have followed some process, reviewed some evidence, examined the matter from a couple of different points of view and that the evidence that they prefer could support the conclusion that they have reached.
For example if the Secretary of State wanted to use a discretionary power to ban chewing gum in public under legislation that gave him power to act when there were "lots and lots of littering offences" he would need some evidence that showed that there were a number of littering offences associated with chewing gum, 100 or 1,000 or 10,000 or 100,000 per year. If the only evidence available showed there were 100 he might struggle to demonstrate that 100 equalled "lots and lots."
But they have discretion to prefer one set of evidence over another set of evidence and discretion to conclude that the evidence they prefer should lead them to act on one supportable conclusion rather than another. He is absolutely not required to only look at evidence the Scottish Government likes. If he has two studies available, one which says chewing gum causes between 100 and 1,000 littering instances a year and one which says between 10,000 and 100,000 he is able to decide to rely on the one that says 10,000 to 100,000 and probably entitled to decide that the correct number he should be worried about is 100,000 not 10,000.
2) Adverse effect is a very low bar. We're not talking about a significant adverse effect, or an adverse effect on balance or an adverse effect which is worth it because it advances some other worthy cause. Just an adverse effect on a reserved area.
I expect the Secretary of State for Scotland is going to submit significant volumes of evidence that supports his and Badenoch's position*, along with some evidence that doesn't, a briefing note that explains why the evidence he doesn't like is not the best evidence and explainer on the review process that the various departments went through along with the legal advise he received from the various law officers. And the judge is going to look at that bundle of papers and go "yeah, that will do".
So you've got a very high bar for the pursuer to clear in demonstrating unreasonableness and a low bar for the Secretary of State for Scotland to clear in demonstrating adverse effect. I don't see the Secretary of State for Scotland losing.
Looking a bit further at the politics of the aftermath of the case I don't any likely future Secretary of State for Scotland taking a different view unless required to by Parliamentary arithmetic. Yousaf might decide to introduce a revised version of the GRR Bill although there is a risk that any such bill he brings forward will be vetoed too. Assuming it passes. The Secretary of State for Scotland might have an interest in vetoing revised Bills in order to flesh out where the limits of his S35 veto extend.
* My guess is that part of their position will be that having significantly different processes and standards for identifying protected characteristics *will* create confusion in public officials and other affected parties in the exercise of their duties under the Equalities Act. If they are feeling very bold they may argue that an adverse effect occurs where having significantly different processes and standards for identifying protected characteristics *may* create confusion in public officials and other affected parties. I am however guessing here and I'm not one of the Crown's legal team. Whatever the details of their position they will find sufficient evidence to support it.
no subject
Date: 2023-04-17 11:08 am (UTC)Thanks, that makes sense. It does very-much sound like the Secretary of State for Scotland can pull a gnats wing out of the air, decide it causes an issue based on whatever evidence they choose to also pluck out of the maelstrom, and that clears their bar.
I'm not sure it would be worth resubmitting different variants on the law unless the Conservatives were willing to say "Here is what would satisfy us", and they've shown no interest in doing so, so far. It's not like they said, in advance, "We're going to veto it unless you change X". Or, indeed, showed any signs in advance of vetoing it.
no subject
Date: 2023-04-17 12:51 pm (UTC)Yeah, pretty much.
The main check here is political rather than evidential. If the Secretary of State for Scotland were to get in to the habit of S35 vetos or were to veto a piece of legisltation with large and strong popular support (and I'm talking anti-poll tax levels of popular support) without good grounds then I think they could expect some political blowback either in the House of Commons or the next general election but it's the first time the S35 veto has been used and I don't think the GRR Bill has that deep public support and probably less so in Dumfries and Galloway.
I don't see the Conservatives being co-operative about what changes to the GRR Bill they would consider acceptable. It's been a long long time since I studied equalities law but it's a very very complex area of law in both practice and theory. It would not surprise me even with a good faith discussion the UK Governent could still genuinely hold the position that the Scottish GRR Bill would impact UK equalities law.
And you're unlikely to get a good faith discussion because, politically, I think Alister Jack is looking at the next election thinking he mostly needs to persuade socially conservative Unionist voters to switch their vote from the Labour Party to the Conservative Party enough to hang on to a few seats. This is a very easy political decision for him. Voters who are going to be cross at him about this are going to tend to be urban SNP-Green switchers. So Jack will happily veto GRR Bills all day long.
no subject
Date: 2023-04-17 01:03 pm (UTC)no subject
Date: 2023-04-13 11:13 am (UTC)Round wheels with similar caterpillar tracks might be an interesting idea.
no subject
Date: 2023-04-14 08:56 am (UTC)no subject
Date: 2023-04-14 08:56 am (UTC)no subject
Date: 2023-04-14 09:01 am (UTC)