Gender recognition reform postponed

Photo by Sharon McCutcheon on Unsplash

The Coronavirus continues to create chaos – legally speaking.

The latest casualty is the Scottish Government’s promised review of the Gender Recognition Act 2004. This exercise will now be postponed for the foreseeable future.

On 20 June 2019, the Scottish Government stated that, following a consultation in 2018, it would be bringing forward a Gender Recognition Bill in order to reform the current Gender Recognition Act 2004.

This exercise was always dogged by a lack of clarity on the Government’s part. Shirley-Anne Sommerville MSP, the Government Minister who had responsibility for this issue had publicly admitted that there was still a need to build a “maximum consensus” before things become clearer. Code for sorting out divisions over the issue within the ranks of the Scottish National Party.

A link to information about the proposed Bill can be found below:

https://www.gov.scot/publications/review-of-gender-recognition-act-2004/

The Gender Recognition Act 2004

In April 2005, the Gender Recognition Act 2004 came into force. This Act, which received the Royal Assent on 1 July 2004, currently provides people who have undergone gender reassignment procedures with legal recognition in relation to their newly acquired gender identity. The legislation applies across the United Kingdom and was passed by the Westminster Parliament.

Legal recognition of a person’s decision to reassign the sex or gender they have had from birth will follow from the issuing of a full gender recognition certificate by a Gender Recognition Panel. The individual applying for such a certificate must be able to satisfy certain criteria – the most important criterion will centre around the submission of medical evidence of physiological changes by the applicant.

Since the introduction of the Act, it has long been the case, therefore, that it will amount be unlawful discrimination to treat a person less favourably because s/he has undergone a a process of gender reassignment. The Equality Act 2010, of course, also bolsters legal protection for transgender people.

The Scottish Government’s proposed Gender Recognition Bill

The proposed Bill was controversial because some Scottish National Party MSPs and MPs (e.g. Joanna Cherry QC, Ash Denham, Kate Forbes and Lindsay Martin) are concerned about its main objective: that an individual who wishes to undergo gender reassignment will no longer have to provide medical evidence to the Gender Recognition Panel. The Panel currently determines the gender or sex of individuals who wish to undergo reassignment by issuing them with a certificate:

https://www.scottishlegal.com/article/joanna-cherry-qc-signs-letter-opposing-rush-to-reform-gender-law

https://www.bbc.co.uk/news/uk-scotland-scotland-politics-48037152

Under the Scottish Government’s proposals, an individual could effectively self-identify as a person of the opposite sex without having to undergo invasive medical procedures and provide the evidence of this fact in order to obtain recognition from the Panel.

Under the proposed legislation, an individual wishing to undergo gender reassignment would have to have met the following criteria:

  • A statutory declaration to the effect that they have decided to change gender or sex;
  • The declaration will contain a statement that the individual has been living as a man or a woman for at a minimum of 3 months;
  • The individual will have to undertake a compulsory or mandatory period of 3 months to reflect on the decision to undergo gender reassignment (no gender recognition certificate will be issued until this period has been completed).

Two academics at the University of Edinburgh, Dr Kath Murray and Lucy Hunter Blackburn have also been extremely critical about the Scottish Government’s approach to transgender rights generally.

A link to an article in The Holyrood Magazine discussing the research conducted by the two academics can be found below:

https://www.holyrood.com/articles/news/scottish-trans-policy-detrimental-women-and-girls

For the time being all of the above is going to be purely academic.

Related Blog articles:

https://seancrossansscotslaw.com/2019/07/17/whos-the-daddy/

https://seancrossansscotslaw.com/2019/09/26/im-not-your-daddy/

https://seancrossansscotslaw.com/2019/06/25/gender-neutral/

https://seancrossansscotslaw.com/2020/02/18/safe-spaces/

https://seancrossansscotslaw.com/2019/12/21/say-what-you-want/

https://seancrossansscotslaw.com/2020/02/16/say-what-you-want-continued/

Copyright Seán J Crossan, 1 April 2020

What a difference a day makes …

Photo by Jim Wilson on Unsplash

Only yesterday, I was discussing provisions of the Coronavirus (Scotland) Bill which would have led to the suspension of trial by jury for indictable offences in Scotland.

It seems that the Scottish Government has had second thoughts about this issue and has decided not to proceed with these proposals – although Humza Yousaf MSP, Cabinet Secretary for Justice has said that the Government will revisit the matter sometime in the next month.

This is the essential problem with emergency legislation – the unexpected consequences which arise in such situations due to the fact that there is a lack of effective oversight or supervision.

Were the Government’s proposals a sinister attempt to undermine trial by jury or were they simply a necessary evil determined by social distancing requirements during the COVID-19 crisis?

Whatever reason you prefer, the Scottish Government has found itself at the centre of a backlash from the usual suspects – the Scottish Criminal Bar Association – and from its own supporters e.g. Joanna Cherry QC MP (see below):

This has led to a situation which no Government (irrespective of its political colours) likes to be in: having to make an embarrassing U-turn.

In normal times, of course, the Government would have circulated its proposals in a discussion paper well in advance of any draft legislation being published. In this way, various interested parties, such as the Faculty of Advocates and the Law Society of Scotland, could have made their views known and, for the Government, this allows a useful measurement of the temperature to be taken.

The Law Society of Scotland, which represents solicitors, bemoaned the lack of consultation by the Scottish Government (see below):

This is why emergency legislation should always contain a clause or a provision which allows it to be regularly reviewed by Parliament. In this way, very simple questions can be posed:

  • Is the law working properly?
  • Is it still necessary?

Please find below a link to the story about this development on the BBC website:

www.bbc.co.uk/news/uk-scotland-scotland-politics-52111412

Related Blog articles:

https://seancrossansscotslaw.com/2020/03/31/trial-without-jury/

https://seancrossansscotslaw.com/2020/03/23/tholing-his-assize-alex-salmond-former-scottish-first-minister-acquitted-of-13-charges-of-sexual-offences-some-reflections-on-criminal-prosecutions-in-scotland-the-burden-of-proof-required-to-secu

https://seancrossansscotslaw.com/2020/02/15/oh-brother/

https://seancrossansscotslaw.com/2019/05/02/consent/

https://seancrossansscotslaw.com/2019/02/25/the-jury/

https://seancrossansscotslaw.com/2020/03/15/kaboom/

Copyright Seán J Crossan, 1 April 2020

Trial without jury?

Screen capture by Seán J Crossan

I seem to be on a theme today due to COVID-19.

The latest legal development is the Scottish Government’s attempt to deal with the crisis by passing an emergency Bill through the Scottish Parliament in one day. The Coronavirus (Scotland) Bill undoubtedly contains welcome measures e.g. protection for tenants against eviction by their landlords throughout the duration of the crisis.

The relevant provisions of the Bill are contained in Section 11(1) and (4) respectively and are as follows:

“The Scottish Ministers may by regulations provide that trials on indictment are to be conducted by the court sitting without a jury.”

This would, in effect, create a situation where a Sheriff or a Lord Commissioner of Justiciary in a solemn trial was both Master of the Law and Master of fact.

Not everyone is welcoming the Bill in its entirety: the Scottish Criminal Bar Association has been extremely critical of proposals which would, in particular, permit the temporary abolition of trial by jury (solemn trials).

Prominent members of the Scottish National Party, such as Joanna Cherry QC MP, have stated their extremely strong opposition to the proposals (see Tweet below):

Ronnie Renucci QC, Chair of the Scottish Criminal Bar Association, issued the following statement attacking the Bill’s provisions in relation to jury trials:

The proposals in this bill include attacks on principles that have been built over 600 years and are at the very cornerstone of Scotland’s criminal justice system and democratic tradition. … Any changes, however temporary, should not erode important principles of our legal system which would have the effect of undermining or ignoring the citizen’s rights to justice. They should not at a stroke remove the fundamental principle of the right of those citizens charged with serious offences to a trial by a jury of their peers within a reasonable time. … The SCBA believes that these draconian measures seeking to bring about seismic changes to our system of justice are premature, disproportionate and ill-advised. They are at best a knee-jerk reaction to an as yet unquantified problem instigated by panic or at worst, something far more sinister.”

As Mr Renucci also points out in his statement, juries have been in existence in Scotland since the reign of King Alexander II (1214-49). Even during the Second World War, the practice of trial by jury continued – albeit restricted to 7 jurors as opposed to the usual number of 15.

I should, of course, point out that the vast majority of criminal trials (95%) in Scotland are conducted in the lower criminal courts – the Justice of the Peace and Sheriff Courts – under summary procedure. In England and Wales, the figures are similar. Yet, the emotional attachment to the right of trial by jury remains very strong in both jurisdictions.

We should not, however, ignore or downplay the value of solemn trials in that they permit someone who is accused of serious criminal offences (e.g. former Scottish First Minister, Alex Salmond) to be tried by a jury of his/her peers. A

There are unhappy precedents for restricting the right to trial by jury.

In Northern Ireland, during the period known euphemistically as ‘The Troubles‘, the Diplock Courts were established under the provisions of the Northern Ireland Act 1973. This legislation abolished the right to trial by jury for terrorism related offences. The rationale behind this development was to curb juror intimidation by paramilitary organisations such as the Provisional IRA and the Ulster Defence Association. These courts, where one judge presided, were highly controversial. They were only abolished comparatively recently as a result of the introduction of the Justice and Security (Northern Ireland) Act 2007.

During the first and second terms of the Blair Government (1997-2001 and 2001-2005 respectively), attempts were made to curtail the right to trial by jury in England and Wales. This would have applied to offences triable either way i.e. they could be tried under summary procedure or on indictment. In such situations, it is the choice of the accused (the defendant) to decide which sort of trial they should face – trial by magistrates or trial by jury. The Blair Government’s proposals were not welcomed and eventually sank beneath the waves of protest from a number of Mr Blair’s own MPs, members of the House of Lords, the Law Society and the Bar Council (to name but a few opponents).

https://www.theguardian.com/politics/2000/jan/21/jurytrials.law2

https://www.independent.co.uk/news/uk/politics/labour-rebels-to-ambush-blair-over-trial-by-jury-105088.html

Conclusion

Some 20 years ago, when Prime Minister Blair’s Government proposed restrictions on the right to trial by jury, the words of Lord Devlin, a former Law Lord, were often quoted. Lord Devlin’s remarks are worth repeating in the current context:

“…trial by jury is more than an instrument of Justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives.”

Related Blog articles:

https://seancrossansscotslaw.com/2020/03/23/tholing-his-assize-alex-salmond-former-scottish-first-minister-acquitted-of-13-charges-of-sexual-offences-some-reflections-on-criminal-prosecutions-in-scotland-the-burden-of-proof-required-to-secu

https://seancrossansscotslaw.com/2020/02/15/oh-brother/

https://seancrossansscotslaw.com/2019/05/02/consent/

https://seancrossansscotslaw.com/2019/02/25/the-jury/

https://seancrossansscotslaw.com/2020/03/15/kaboom/

Copyright Seán J Crossan, 31 March 2020