Mastodawn

The British "constitution" is like #HumptyDumpty. It seems to mean whatever those in power find it convenient to mean at any given time, even if all previous understandings are thereby completely set aside, or even trampled and mocked.

This is of course what happened In the #UKSC's judgment in #FWS. The judges refused to hear any opposing arguments, ignored all the evidence in parliamentary proceedings of the clearly stared intent of ministers. They then proceeded to not just gut the existing statutory framework and overturn it, but to do so on the basis of absurdist concepts such as "biological sex", which they didn't even attempt to define.

In both cases, sleight of hand is masquerading as law.

Each of those changes could have been made by a short and simple Act of Parliament. For Andrew, the Bill of Attainder process could have been revived after two centuries absence, and that would at least have been honest that it was punishment without trial.

Smilarly, the #UKSC's stripping of trans rights in #FWS could have been done in a very simple bill amending the Equality Act 2020. That would still have been a cruelly devastating breach of #ECHR rights, but at least it would have been procedurally honest.

#UKania does sometimes do procedural honesty. But it's optional.

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Simon Brooke

@2legged Mind you, if parliament had an ounce of gumption, it could overrule the Supreme Court by passing a bill saying 'When we said in the Gender Recognition Act that 'Where a full gender recognition certificate is issued to a person, the person’s gender becomes FOR ALL PURPOSES the acquired gender,' that is exactly what we meant, and the justices of the #UKSupremeCourt need a course in remedial English comprehension."

The law isn't in the least ambiguous here. The court was plainly wrong.

Dash Nov 3

@simon_brooke @2legged Doesn't even matter if the law was ambiguous and the court was right.

Starmer is an absolute moral weathercock. With the emphasis on the appropriate syllable.

Absolutely, @simon_brooke. The #UKSC inverted reality, and stripped rights that parliament had clearly intended to confer.

That could have been done honestly by Parliament. It could have voted to clarify definitions either way, and it could still do so. A simple amendment could undo the #FWS judgment.

But my meta point is that both with Andrew and with #trans people, UK law was simply pulled out of a conjurer's hat, then solemnised as if it was ancient. The "#BritishConstitution" is a farce.

@simon_brooke @2legged
The Court of Session recognised that the Gender Recognition Act 2004 was specifically passed in response to Goodwin v UK 2002, & therefore the Equality Act 2010 was written in full knowledge of "for all legal purposes" being in the 2004 Act and applying unless specifically excepted.

The Supreme Court went on the basis that the 2010 Act used similar language to the 1975 Act and therefore must mean the same as it would have in 1975 (prior to the 2002 case & 2004 Act)

@HighlandLawyer @simon_brooke Even that #CourtOfSession reliance on a correct interpretation of #GRA2004 & #EA2010 misinterpreted #SDA1975.

At committee stage of #SDA1975, the minister assured MPs that SDA would treat trans people by their reassigned sex. But a botched employment case against British Sugar in late 1970s ignored that. SDA was then misapplied as meaning sex registered at birth.

The #UKSC judgment in #FWS was wrong on all 3 acts: #GRA2004. #EA2010, #SDA1975. It is a #Stitchup

#TransRightsAreHumanRights

@2legged @HighlandLawyer it doesn't look much like an impartial or fair-minded interpretation of the law. Is there anything, constitutionally, that members of the public can do to express #NoConfidence in the #UKSupremeCourt?

@simon_brooke @2legged
The thing is *technically* the Supreme Court decision was about the interpretation of a term in one specific piece of legislation- it was an illogical decision but in and of itself it would have had limited harm (& could easily have been fixed by Westminster in almost no time at all). It was, as I predicted at the time, the spin put on the decision by media & politicians as being "the legal definition of sex" which expanded that to a full scale removal of trans rights.

@simon_brooke @2legged
But the answer is no, there is no recourse against the Supreme Court, the only option is for someone who is impacted by the decision to take it back to Strasbourg, who presumably will point at the Goodwin decision and say "did we stutter?"

@HighlandLawyer @2legged ... But it was fairly predictable for anyone with two brain cells to rub together that that would have been the outcome, so the #UKSupremeCourt justices cannot credibly plead ignorance; and it is not, by my understanding, within their constitutional competence to overturn the very clear wording of the #2004 act.

Surely, at the very least, resignations are called for?

@simon_brooke @2legged

@HighlandLawyer @2legged I have two advantages over you, then:

1. I am not a lawyer;
2. I am, however, barking mad.

Throughout history it has been we fools who have had the ability to speak truth unto power.

(Power, of course, doesn't care.)

@HighlandLawyer @2legged and they were plainly wrong because the 2004 act clearly says so. So the judgement was at best perverse.

@simon_brooke @HighlandLawyer Not quite so, Simon. #GRA2004 §9(1) provides recognition "for all purposes". So far so good.

But §9(3) allows other acts to create exceptions: "Subsection (1) is subject to provision made by this Act or any other enactment or any subordinate legislation".

This was intended to allow for technicalities like inheritance of trusts.

But the #UKSC applied §9(3) to an act where no explicit provision had been made. Their claim of implicit provision is outrageous novelty.

@2legged @simon_brooke
Precisely.
If the 2010 Act had intended to exclude the provisions of the 2004 Act, it would have said so. This is not an unusual point of draughtmanship; there are numerous other pieces of legislation which say they apply everywhere except where expressly excluded by Parliament in a particular Act. There is no logical legal reason to treat the 2010 Act any differently.

@HighlandLawyer @simon_brooke Yes.

This new doctrine of implicit provision of unstated exceptions removes certainty from vast swathes of law in many fields. It is seriously destabilising.

The UKSC has invented a terrible legal doctrine. It probably won't be long be a later UKSC bans implicit provision of iinstated exceptions.

@2legged @HighlandLawyer 'gender' and 'sex' are, for these purposes, synonyms, and it would be (has been) disingenuous to pretend otherwise. That one act uses one and another the other is, possibly, sloppy draughtsmanship, but the intent is perfectly clear.

If the #UKSupremeCourt wish to pretend there is some distinction in semantics, it behoves them to elucidate.

Indeed, Simon.

But the pretence by #TERFs & #gendercritters that there is any legal distinction for these #trans-related purposes is clearly refuted by #GRA2004 §9(1) . It's not just crystal clear; it spells out the issue in unusual detail, with deliberate verbose pedantry to close off any trace of wiggle room. https://www.legislation.gov.uk/ukpga/2004/7/section/9

But the GCs have never been averse to outright mendacity

@2legged @HighlandLawyer so, as I said when I cited a very similar passage, the justices of the #UKSupremeCourt are just plain wrong in law. In this case the text is clear and unambiguous, and uses both words interchangeably.

This ruling cannot stand.

Yes, but. ☹️

Unfortunately, it does stand. No domestic court in the UK can overule the #UKSC, despite its obvious dishonesty. A v short bill in Parliament could overturn the UKSC nonsense, restoring the #EA2010 intent, but #Starmer won't allow that.

So it will need a case at the #ECtHR in Strasbourg, which the #trans ppl will almost certainly win. But the trans victory will be pyrrhic, weaponised by the UK's right as the casus belli for leaving the #ECHR. ☹️

@2legged @HighlandLawyer ah, our first human rights lawyer Prime Minister. So clearly a man of principal.

Just as soon as McSweeney has told him what the principal for today may be.

It's a remarkable achievement by #TheMadCountry that for decades each successive #UKprimeMinister has claim to being worse than their predecessor.

At least Johnson's mendacity had some charm, Truss's devastating idiocy was high comedy (see Reggie's video), and Sunak's billionaire lack of self-awareness was cringetastic. But #Starmer's shameless mendacity and bombs-not-bairns callousness is offset by neither redeeming virtue nor comic distraction. #MultiTalentless

@2legged @HighlandLawyer for all #Starmer's faults — and I see little virtue in him — he is not quite such a dishonourable person as #Johnson, nor nearly so vain and stupid as #Truss.

Sorry, but i gotta disagree about that. Being trans, I rank Starmer lower than Truss or Johnson. His mendacity has undone my life's work in securing the GRA2004, and his govt is making my trans friends in the UK into untermensch. He is also persecuting opponents of genocide. These are classic fascist policies

@2legged @HighlandLawyer oh, indeed. But would Truss or Johnson have done better?

The sad thing is, ten years ago I was trying to persuade a Lithuanian #trans friend to move to Scotland, thinking they'd be happier and safer here. I'm not trying any longer, because they wouldn't, under either #Labour or #Conservative governments (never mind #Reform!)

@simon_brooke @HighlandLawyer I had a trans friend who in about 2017 faced a similar decision on moving to Scotland.

Initially Scottish trans ppl were encouraging. But by mid 2018, they wisely changed tack, and explained how it was getting worse than their worst fears. New advice: avoid Scotland.

My guess is that Johnson would have been a bit better, cos he's not a zealot. Truss probably as bad, but without the deadly muzzling of trans allies in the Labour Party.

@2legged @HighlandLawyer Johnson would have been very much worse, because whipping up bigotry is his schtick. Whether it's Black 'picaninnies with water melon smiles', or women in burqas 'looking like letter-boxes', or 'men in lipstick', he's always known the right turn of phrase to incite the pogrom.

Unless you're rich enough to fund his lifestyle, or powerful enough that he can ride your coat tails into further opportunities for larceny, he will never be on your side.

@simon_brooke @HighlandLawyer Oh, I'd never expect him to be remotely on my side.